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EXHIBIT 10.9
GFC
LOAN AND SECURITY AGREEMENT
BORROWER: PROCOM TECHNOLOGY, INC.
ADDRESS: 0000 XXXXXX XXXXX
XXXXXX, XXXXXXXXXX 00000
DATE: NOVEMBER 18, 1994
THIS LOAN AND SECURITY AGREEMENT ("Agreement") dated the date set forth above,
is entered into by and between the borrower named above (jointly and severally,
the "Borrower"), whose address is set forth above and Greyhound Financial
Corporation ("GFC"), whose address is 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000.
1. LOANS
1.1 Total Facility. Upon the terms and conditions set forth herein and
provided that no Event of Default or event which, with the giving of notice or
the passage of time, or both, would constitute an Event of Default, shall have
occurred and be continuing, GFC may, upon Borrower's request, make advances to
Borrower from time to time in an aggregate outstanding principal amount not to
exceed the Total Facility amount (the "Total Facility") set forth on the
schedule hereto (the "Schedule"), subject to deduction of reserves for accrued
interest and such other reserves as GFC reasonably deems proper from time to
time, and less amounts GFC may be obligated to pay in the future on behalf of
Borrower. GFC shall notify Borrower with reasonable promptness of the
establishment any of such reserves. The Schedule is an integral part of this
Agreement and all references to "herein", "herewith" and words of similar
import shall for all purposes be deemed to include the Schedule.
1.2 Loans. Advances under the Total Facility ("Loans") shall be comprised of
the amounts shown on the Schedule.
1.3 Overlines. If at any time or for any reason (i) the outstanding amount of
advances made pursuant hereto exceeds any of the dollar or percentage
limitations contained in the Schedule or (ii) the outstanding amount of
advances under the Floorplan Credit Line exceeds the amount of Floorplanned
Inventory plus the unused amount of the Revolving Credit Line referred to in
the Schedule (any such excess, an "Overline"), then Borrower shall, upon GFC's
demand, immediately pay to GFC, in cash, the full amount of such Overline.
Without limiting Borrower's obligation to repay to GFC on demand the amount of
any Overline, Borrower agrees to pay GFC interest on the outstanding principal
amount of any Overline, on demand, at the rate set forth on the Schedule.
1.4. Floorplan Credit Line. At the request of Borrower and as part of the
Total Facility, GFC may, in its sole discretion, make Floorplan Loans to or for
the account of Borrower for the purpose of financing Qualified Inventory
proposed by Borrower to be financed pursuant to this Section 1.4 (the
"Floorplan Credit Line"). At no time shall the sum of Borrower's Obligations
to GFC in respect of the Floorplan Credit Line exceed the amount specified in
the Schedule. Upon receipt by GFC of an invoice for Floorplanned Inventory
from Borrower or the manufacturer of such Floorplanned Inventory, which invoice
is acceptable to GFC in its discretion reasonably exercised, GFC shall, if it
elects to finance such Floorplanned Inventory, make a Floorplan Loan to
Borrower in an amount not to exceed (subject to the other limitations set forth
in this Agreement) the cost of such Floorplanned Inventory, including freight.
GFC may, in its discretion reasonably exercised, refuse to make a Floorplan Loan
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against any invoice. If GFC elects to make a Floorplan Loan, GFC may disburse
the proceeds of such Floorplan Loan, less the amount of any discount agreed to
between GFC and the manufacturer of the Floorplanned Inventory, directly to such
manufacturer on Borrower's behalf in accordance with the payment arrangement
then in effect between GFC and such manufacturer. GFC will charge Borrower's
loan account for the full amount of the Floorplan Loan without regard to any
discount that GFC may be entitled to receive pursuant to any payment arrangement
referred to in the immediately preceding sentence. The Floorplan Credit Line is
an uncommitted line of credit, may be terminated in whole or in part by GFC, in
its discretion reasonably exercised, at any time and, upon such termination, no
further Floorplan Loans shall be available from GFC.
1.5 Loan Account. All advances made hereunder shall be added to and deemed
part of the Obligations when made. GFC may from time to time charge all
Obligations of Borrower to Borrower's loan account with GFC.
2. CONDITIONS PRECEDENT.
2.1 Initial Advance. The obligation of GFC to make the initial advance
hereunder is subject to the fulfillment, to the satisfaction of GFC and its
counsel, of each of the following conditions and any additional conditions
specified in the Schedule on or prior to the date set forth on the Schedule
(the date of fulfillment of all such conditions, the "Closing Date"):
(a) Loan Documents. GFC shall have received each of the following Loan
Documents: (i) Guaranties executed by each of the Guarantors; (ii) such security
agreements, intellectual property assignments and deeds of trust as GFC may
require with respect to this Agreement and any Guaranties, executed by each of
the parties thereto and, if applicable, duly acknowledged for recording or
filing in the appropriate governmental offices; (iii) such Blocked Account or
Dominion Account agreements as it shall determine; and (iv) such other
documents, instruments and agreements in connection herewith as GFC shall
require, executed, certified and/or acknowledged by such parties as GFC shall
designate;
(b) Terminations by Existing Lender. Borrower's existing lender(s) shall have
executed and delivered UCC termination statements and other documentation
evidencing the termination of its liens and security interests in the assets of
Borrower or a subordination agreement in form and substance satisfactory to GFC
in its sole discretion;
(c) Charter Documents. GFC shall have received copies of Borrower's By-laws
and Articles or Certificate of Incorporation, as amended, modified, or
supplemented to the Closing Date, certified by the Secretary of Borrower;
(d) Good Standing. GFC shall have received a certificate of corporate status
with respect to Borrower, dated within ten (10) days of the Closing Date, by
the Secretary of State of the state of incorporation of Borrower; which
certificate shall indicate that Borrower is in good standing in such state;
(e) Foreign Qualification. GFC shall have received certificates of corporate
status with respect to Borrower and each other Loan Party, each dated within
ten (10) days of the Closing Date, issued by the Secretary of State of each
state in which such party's failure to be duly qualified or licensed would have
a material adverse effect on its financial condition or assets, indicating that
such party is in good standing;
(f) Authorizing Resolutions and Incumbency. GFC shall have received a
certificate from the Secretary of Borrower attesting to (i) the adoption of
resolutions of Borrower's Board of Directors authorizing the execution and
delivery of this Agreement and the other Loan Documents to which Borrower is a
party, and authorizing specific officers of Borrower to execute same, and (ii)
the authenticity of original specimen signatures of such officers;
(g) Property Insurance. GFC shall have received the insurance certificates
and certified copies of policies required by Section 4.4 hereof, along with a
BFU438 Lender's Loss Payable Endorsement naming GFC as sole loss payee, all in
form and substance satisfactory to GFC and its counsel;
(h) Title Insurance. GFC shall have received binding commitments to issue
such title insurance with respect to Collateral or security for Guaranties
which is comprised of real property as it shall determine;
(i) Searches; Certificates of Title. GFC shall have received searches
reflecting the filing of its financing statements and fixture filings in such
jurisdictions as it shall determine, and shall have received certificates of
title with respect to the Collateral which shall have been
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duly executed in a manner sufficient to perfect all of the security interests
granted to GFC;
(j) Intentionally Deleted.
(k) Fees. Borrower shall have paid all fees payable by it on the closing date
pursuant to this agreement;
(l) Opinion of Counsel. GFC shall have received an opinion of Borrower's
counsel covering such matters as GFC shall determine in its sole discretion;
(m) Officer Certificate. GFC shall have received a certificate of the
President and the Chief Financial Officer or similar official of Borrower,
attesting to the accuracy of each of the representations and warranties of
Borrower set forth in this Agreement and the fulfillment of all conditions
precedent to the initial advance hereunder;
(n) Solvency Certificate. If requested by GFC, a signed certificate of the
Borrower's duly elected Chief Financial Officer concerning the solvency and
financial condition of Borrower, on GFC's standard form;
(o) Blocked Account. The Blocked Account referred to in Section 7.3 hereof
shall have been established to the satisfaction of GFC in its sole discretion;
(p) Intentionally Omitted.
(q) Environmental Certificate. GFC shall have received an Environmental
Certificate from Borrower, in form and substance satisfactory to GFC in its
discretion, with respect to all locations of Collateral; and
(r) Other Matters. All other documents and legal matters in connection with
the transactions contemplated by this Agreement shall have been delivered,
executed or recorded and shall be in form and substance satisfactory to GFC and
its counsel.
2.2 Subsequent Advances. The obligation of GFC to make any advance hereunder
(including the initial advance) shall be subject to the further conditions
precedent that, on and as of the date of such advance:
(a) the representations and warranties of Borrower set forth in this Agreement
shall be accurate, before and after giving effect to such advance and to the
application of any proceeds thereof;
(b) no Event of Default and no event which, with notice or passage of time or
both, would constitute an Event of Default has occurred and is continuing, or
would result from such advance or from the application of any proceeds thereof;
(c) no material adverse change has occurred in the Borrower's business,
operations, financial condition, or assets or in the prospect of repayment of
the Obligations; and
(d) GFC shall have received such other approvals, opinions or documents as GFC
shall reasonably request.
3. INTEREST RATE AND OTHER CHARGES.
3.1 Interest; Fees. Borrower shall pay GFC interest on the daily outstanding
balance of Borrower's loan account at the per annum rate set forth on the
Schedule. Borrower shall also pay GFC the fees set forth on the Schedule.
3.2 Default Interest Rate. Upon the occurrence and during the continuation of
an Event of Default, Borrower shall pay GFC interest on the daily outstanding
balance of Borrower's loan account at a rate per annum which is two percent
(2%) in excess of the rate which would otherwise be applicable thereto pursuant
to the Schedule. In addition, in the event that Borrower fails to make any
payment to GFC when due with respect to the Floorplan Credit Line, Borrower
shall pay GFC interest on the daily amount past due at a rate per annum which
is six percent (6%) in excess of the Base Rate referred to in the Schedule.
All such default interest shall be payable upon demand of GFC.
3.3 Examination Fees. Borrower agrees to pay to GFC an examination fee in the
amount set forth on the Schedule in connection with each audit or examination
of Borrower performed by GFC prior to or after the date hereof. Without
limiting the generality of the foregoing, Borrower shall pay to GFC an initial
examination fee in an amount equal to the amount set forth on the Schedule.
Such initial examination fee shall be deemed fully earned at the time of
payment and due and payable upon the closing of this transaction, and shall be
deducted from any good faith deposit paid by Borrower to GFC prior to the date
of this Agreement.
3.4 Excess Interest. The contracted for rate of interest of the loan
contemplated hereby, without limitation, shall consist of the following: (i)
the interest rate set
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forth on the Schedule, calculated and applied to the principal balance of the
Obligations in accordance with the provisions of this Agreement; (ii) interest
after an Event of Default, calculated and applied to the amount of the
Obligations in accordance with the provisions hereof; and (iii) all Additional
Sums (as herein defined), if any. Borrower agrees to pay an effective
contracted for rate of interest which is the sum of the above-referenced
elements. The examination fees, attorneys fees, expert witness fees, letter of
credit fees, collateral monitoring fees, closing fees, facility fees,
Termination Fees, Minimum Interest Charges, other charges, goods, things in
action or any other sums or things of value paid or payable by Borrower
(collectively, the "Additional Sums"), whether pursuant to this Agreement or
any other documents or instruments in any way pertaining to this lending
transaction, or otherwise with respect to this lending transaction, that under
any applicable law may be deemed to be interest with respect to this lending
transaction, for the purpose of any applicable law that may limit the maximum
amount of interest to be charged with respect to this lending transaction,
shall be payable by Borrower as, and shall be deemed to be, additional interest
and for such purposes only, the agreed upon and "contracted for rate of
interest" of this lending transaction shall be deemed to be increased by the
rate of interest resulting from the inclusion of the Additional Sums.
It is the intent of the parties to comply with the usury laws of the
State of Arizona (the "Applicable Usury Law"). Accordingly, it is agreed that
notwithstanding any provisions to the contrary in this Agreement, or in any of
the documents securing payment hereof or otherwise relating hereto, in no event
shall this Agreement or such documents require the payment or permit the
collection of interest in excess of the maximum contract rate permitted by the
Applicable Usury Law (the "Maximum Interest Rate"). In the event (a) any such
excess of interest otherwise would be contracted for, charged or received from
Borrower or otherwise in connection with the loan evidenced hereby, (b) the
maturity of the Obligations is accelerated in whole or in part, or (c) all or
part of the Obligations shall be prepaid, so that under any of such
circumstances the amount of interest contracted for, shared or received in
connection with the loan evidenced hereby, would exceed the Maximum Interest
Rate, then in any such event (1) the provisions of this paragraph shall govern
and control, (2) neither Borrower nor any other person or entity now or
hereafter liable for the payment of the Obligations shall be obligated to pay
the amount of such interest to the extent that it is in excess of the Maximum
Interest Rate, (3) any such excess which may have been collected shall be
either applied as a credit against the then unpaid principal amount of the
Obligations or refunded to Borrower, at GFC's option, and (4) the effective
rate of interest shall be automatically reduced to the Maximum Interest Rate.
It is further agreed, without limiting the generality of the foregoing, that to
the extent permitted by the Applicable Usury Law; (x) all calculations of
interest which are made for the purpose of determining whether such rate would
exceed the Maximum Interest Rate shall be made by amortizing, prorating,
allocating and spreading during the period of the full stated term of the loan
evidenced hereby, all interest at any time contracted for, charged or received
from Borrower or otherwise in connection with such loan; and (y) in the event
that the effective rate of interest on the loan should at any time exceed the
Maximum Interest Rate, such excess interest that would otherwise have been
collected had there been no ceiling imposed by the Applicable Usury Law shall
be paid to GFC from time to time, if and when the effective interest rate on
the loan otherwise falls below the Maximum Interest Rate, to the extent that
interest paid to the date of calculation does not exceed the Maximum Interest
Rate, until the entire amount of interest which would otherwise have been
collected had there been no ceiling imposed by the Applicable Usury Law has
been paid in full. Borrower further agrees that should the Maximum Interest
Rate be increased at any time hereafter because of a change in the Applicable
Usury Law, then to the extent not prohibited by the Applicable Usury Law, such
increases shall apply to all indebtedness evidenced hereby regardless of when
incurred; but, again to the extent not prohibited by the Applicable Usury Law,
should the Maximum Interest Rate be decreased because of a change in the
Applicable Usury Law, such decreases shall not apply to the indebtedness
evidenced hereby regardless of when incurred.
4. COLLATERAL.
4.1 Security Interest in the Collateral. To secure the payment and
performance of the Obligations when due, Borrower hereby grants to GFC a
security interest in all of Borrower's now owned or hereafter acquired or
arising Inventory, Equipment, Receivables, and General Intangibles, including,
without limitation, all of Borrower's Deposit Accounts, money, any and all
property now or at any time hereafter in GFC's possession (including claims and
credit balances), and
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all proceeds (including proceeds of any insurance policies, proceeds of
proceeds and claims against third parties), all products and all books and
records related to any of the foregoing (all of the foregoing, together with
all other property in which GFC may be granted a lien or security interest, is
referred to herein, collectively, as the "Collateral").
4.2 Perfection and Protection of Security Interest. Borrower shall, at its
expense, take all actions requested by GFC at any time to perfect, maintain,
protect and enforce GFC's security interest and other rights in the Collateral
and the priority thereof from time to time, including, without limitation, (i)
executing and filing financing or continuation statements and amendments
thereof and executing and delivering such documents and titles in connection
with motor vehicles as GFC shall require, all in form and substance
satisfactory to GFC, (ii) maintaining a perpetual inventory and complete and
accurate stock records, (iii) delivering to GFC warehouse receipts covering any
portion of the Collateral located in warehouses and for which warehouse
receipts are issued, and when requested transferring Inventory to warehouses
designated by GFC, (iv) placing notations on Borrower's books of account to
disclose GFC's security interest therein, and (v) when requested, delivering to
GFC all letters of credit on which Borrower is named beneficiary. GFC may
file, without Borrower's signature, one or more financing statements disclosing
GFC's security interest under this Agreement. Borrower agrees that a carbon,
photographic, photostatic or other reproduction of this Agreement or of a
financing statement is sufficient as a financing statement. If any Collateral
is at any time in the possession or control of any warehouseman, bailee or any
of Borrower's agents or processors, Borrower shall notify such Person of GFC's
security interest in such Collateral and, upon GFC's request, instruct them to
hold all such Collateral for GFC's account subject to GFC's instructions. From
time to time, Borrower shall, upon GFC's request, execute and deliver
confirmatory written instruments pledging the Collateral to GFC, but Borrower's
failure to do so shall not affect or limit GFC's security interest or other
rights in and to the Collateral. Until the Obligations have been fully
satisfied and GFC's obligation to make further advances hereunder has
terminated, GFC's security interest in the Collateral shall continue in full
force and effect.
4.3 Preservation of Collateral. GFC may, in its sole discretion, at any time
discharge any lien or encumbrance on the Collateral or bond the same, pay any
insurance, maintain guards, pay any service bureau, obtain any record or take
any other action to preserve the Collateral and charge the cost thereof to
Borrower's loan account as an Obligation.
4.4 Insurance. Borrower shall insure the Collateral against loss or damage
by fire, theft, burglary, pilferage, loss in transit and such other hazards as
GFC shall specify, in amounts, form, under policies and by insurers acceptable
to GFC, with a rating by A.M. Best Company, Inc., of at least AA. Each policy
shall include a provision requiring thirty (30) days' prior written notice to
GFC of any cancellation or substantial modification and shall contain a
lender's loss payable indorsement in favor of GFC in form acceptable to GFC.
All premiums shall be paid by Borrower as and when due and accurate and
complete copies of the policies shall be delivered by Borrower to GFC. If
Borrower fails to do so, GFC may (but shall not be required to) procure such
insurance at Borrower's expense.
5. EXAMINATION OF RECORDS; FINANCIAL REPORTING.
5.1 Examinations. GFC shall at all reasonable times have full access to and
the right to examine, audit, make abstracts and copies from and inspect
Borrower's records, files, books of account and all other documents,
instruments and agreements relating to the Collateral and the right to check,
test and appraise the Collateral. Borrower shall deliver to GFC any instrument
necessary for GFC to obtain records from any service bureau maintaining
records for Borrower. All instruments and certificates prepared by Borrower
showing the value of any of the Collateral shall be accompanied, upon GFC's
request, by copies of related purchase orders and invoices. GFC may, at any
time after the occurrence of an Event of Default, remove from Borrower's
premises Borrower's books and records (or copies thereof) or require Borrower
to deliver such books and records or copies to GFC. GFC may, without expense
to GFC, use such of Borrower's personnel, supplies and premises as may be
reasonably necessary for maintaining or enforcing GFC's security interest.
5.2 Reporting Requirements. Borrower shall furnish GFC, upon request, such
information and statements as GFC shall request from time to time regarding
Borrower's business affairs, financial condition and the results of its
operations. Without limiting the generality of the foregoing, Borrower shall
provide GFC with (i) copies of sales invoices, customer statements and credit
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memoranda issued, remittance advices and reports and copies of deposit slips,
daily; (ii) copies of shipping and delivery documents, upon request; (iii) on
or prior to the date set forth on the Schedule, monthly agings and
reconciliations of Receivables, payables reports, inventory reports and
unaudited financial statements (certified by an officer of Borrower acceptable
to GFC) with respect to the prior month prepared on a basis consistent with
such statements prepared in prior months and otherwise in accordance with
generally accepted accounting principles, consistently applied; (iv) audited
annual consolidated and consolidating financial statements, prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with the most recent Prepared Financials provided to GFC by
Borrower, including balance sheets, income and cash flow statements,
accompanied by the unqualified report thereon of independent certified public
accountants acceptable to GFC, as soon as available, and in any event, within
ninety (90) days after the end of each of Borrower's fiscal years; and (v) such
certificates relating to the foregoing as GFC may request, including, without
limitation, a monthly certificate from the president and the chief financial
officer of Borrower showing Borrower's compliance with each of the financial
covenants set forth in this Agreement, and stating whether any Event of Default
has occurred or event which, with giving of notice or the passage of time, or
both, would constitute an Event of Default, and if so, the steps being taken to
prevent or cure such Event of Default.
5.3 Guarantor's Financial Statements and Tax Returns. Borrower shall cause
each of the Guarantors to deliver to GFC such Guarantor's annual financial
statement (in form acceptable to GFC) and a copy of such Guarantor's federal
income tax return with respect to the corresponding year, in each case on the
date when such tax return is due or, if earlier, on the date when available.
6. COLLATERAL REPORTING; INVENTORY
6.1 Invoices. Borrower shall not re-date any invoice or sale from the
original date thereof or make sales on extended terms beyond those customary in
Borrower's industry, or otherwise extend or modify the term of any Receivable.
If Borrower becomes aware of any matter affecting any Receivable, including
information affecting the credit of the account debtor thereon, Borrower shall
promptly notify GFC in writing.
6.2 Instruments. In the event any Receivable is or becomes evidenced by a
promissory note, trade acceptance or any other instrument for the payment of
money, Borrower shall immediately deliver such instrument to GFC appropriately
endorsed to GFC and, regardless of the form of any presentment, demand, notice
of dishonor, protest or notice of protest with respect thereto, Borrower shall,
to the extent of any Obligations then existing, remain liable thereon until
such instrument is paid in full.
6.3 Physical Inventory. Borrower shall conduct a physical count of the
Inventory at such intervals as GFC requests and promptly supply GFC with a copy
of such accounts accompanied by a report of the value (calculated at the lower
of cost or market value on a first in, first out basis) of the Inventory and
such additional information with respect to the Inventory as GFC may request
from time to time.
6.4 Returns. For so long as no Event of Default has occurred and is continuing
and subject to the provisions of Section 9.2, if any account debtor returns any
Inventory to Borrower in the ordinary course of its business, Borrower shall
promptly determine the reason for such return and promptly issue a credit
memorandum to the account debtor (sending a listing thereof to GFC and, in the
case of credit memorandum in excess of $5,000, copies of such credit memorandum)
in the appropriate amount. In the event any attempted return for credit occurs
after the occurrence of any Event of Default, Borrower shall (i) hold such
returned Inventory in trust for GFC, (ii) segregate all such returned Inventory
from all of Borrower's other property, (iii) conspicuously label such returned
Inventory as GFC's property, and (iv) immediately notify GFC of the return for
credit of any Inventory, specifying the reason for such return, the location and
condition of such returned Inventory, and on GFC's request deliver such returned
Inventory to GFC. Borrower shall not consign any Inventory without the prior
written consent of GFC.
7. PRINCIPAL PAYMENTS; PROCEEDS OF COLLATERAL.
7.1 Principal Payments. Except where evidenced by notes or other instruments
issued or made by Borrower to GFC specifically containing payment provisions
which are in conflict with this Section 7.1 (in which event the conflicting
provisions of said notes or other instruments shall govern and control), that
portion of the Obligations consisting of principal payable on account of
Receivable Loans, Inventory Loans and Floorplan Loans
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shall be payable by Borrower to GFC immediately upon the earliest of (i) the
receipt by GFC or Borrower of any proceeds of any of the Collateral, to the
extent of said proceeds, (ii) the occurrence of an Event of Default in
consequence of which GFC elects to accelerate the maturity and payment of such
loans, (iii) any termination of this Agreement pursuant to Section 16 hereof
and (iv) in the case of any Floorplan Loan, the date that is the number of days
set forth in Exhibit A to this Agreement after the invoice date for the
Floorplanned Inventory purchased with the proceeds of such Floorplan Loan,
which number of days are specified opposite the name of the manufacturer of
such Floorplanned Inventory in such Exhibit A (and GFC shall have the right, in
its sole discretion, to amend or supplement such Exhibit A in whole or in part
by delivery from time to time of a new such Exhibit A to Borrower); provided,
however, that any Overline shall be payable on demand pursuant to the
provisions of Section 1.3 hereof.
7.2 Collections. To the extent Borrower receives any collections of
Receivables, it shall receive all payments as trustee of GFC and immediately
deliver all payments to GFC in their original form as set forth below, duly
endorsed in blank. GFC or its designee may, at any time in its reasonable
discretion and upon the occurrence of an Event of Default, notify account
debtors that the Receivables have been assigned to GFC and of GFC's security
interest therein, and may collect the Receivables directly and charge the
collection costs and expenses to Borrower's loan account. Borrower agrees that,
in computing the charges under this Agreement, all items of payment shall be
deemed applied by GFC on account of the Obligations upon receipt of GFC of good
funds which have been finally credited to GFC's account, whether such funds are
received directly from Borrower or from the Blocked Account bank or the
Dominion Account bank, pursuant to Section 7.3 hereof. GFC is not, however,
required to credit Borrower's account for the amount of any item of payment
which is unsatisfactory to GFC in its discretion reasonably exercised and GFC
may charge Borrower's loan account for the amount of any item of payment which
is returned to GFC unpaid.
7.3 Establishment of a Lockbox Account or Dominion Account. All proceeds of
Collateral shall, at the direction of GFC, be deposited by Borrower into a
lockbox account, or such other "blocked account" as GFC may require (each, a
"Blocked Account") pursuant to an arrangement with such bank as may be selected
by Borrower and be acceptable to GFC. Borrower shall issue to any such bank an
irrevocable letter of instruction directing said bank to transfer such funds so
deposited to GFC, either to any account maintained by GFC at said bank or by
wire transfer to appropriate account(s) of GFC. All funds deposited in a
Blocked Account shall immediately become the sole property of GFC and Borrower
shall obtain the agreement by such bank to waive any offset rights against the
funds so deposited. GFC assumes no responsibility for any Blocked Account
arrangement, including without limitation, any claim of accord and satisfaction
or release with respect to deposits accepted by any bank thereunder.
Alternatively, GFC may establish depository accounts in the name of GFC at a
bank or banks for the deposit of such funds (each, a "Dominion Account") and
Borrower shall deposit all proceeds of Receivables and all cash proceeds of any
sale of Inventory or, to the extent permitted herein, Equipment or cause same
to be deposited, in kind, in such Dominion Accounts of GFC in lieu of
depositing same to Blocked Accounts.
7.4 Payments Without Deductions. Borrower shall pay principal, interest, and
all other amounts payable hereunder, or under any related agreement, without
any deduction whatsoever, including, but not limited to, any deduction for any
setoff or counterclaim.
7.5 Collection Days Upon Repayment. In the event Borrower repays the
Obligations in full at any time hereafter, such payment in full shall be
credited (conditioned upon final collection) to Borrower's loan upon GFC's
receipt thereof.
7.6 Monthly Accounting. GFC shall provide Borrower monthly with an account of
advances, charges, expenses and payments made pursuant to this Agreement. Such
account shall be deemed correct, accurate and binding on Borrower and an account
stated (except for reverses and reapplications of payments made and corrections
of errors discovered by GFC), unless Borrower notifies GFC in writing to the
contrary within ninety (90) days after each account is rendered, describing the
nature of any alleged errors or admissions; and notwithstanding such 90-day
period, in the event GFC at any time determines that it has mistakenly charged
Borrower's account for an amount due to GFC from a third party, or has
mistakenly transferred any of Borrower's property to a third party, then GFC
shall make a commercially reasonable attempt to recover such amounts or
property, as applicable from such third party, and shall credit Borrower's
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account or return such property, as applicable, to the extent any recovery is
realized.
8. POWER OF ATTORNEY.
Borrower appoints GFC and its designees as Borrower's attorney, with the power
to endorse Borrower's name on any checks, notes, acceptances, money orders or
other forms of payment or security that come into GFC's possession; to sign
Borrower's name on any invoice or xxxx of lading relating to any Receivable, on
drafts against customers, on assignments of Receivables, on notices of
assignment, financing statements and other public records, on verifications of
accounts and on notices to customers or account debtors; to send requests for
verification of Receivables to customers or account debtors. After the
occurrence of any Event of Default GFC shall have the following additional
powers of attorney: to notify the post office authorities to change the address
for delivery of Borrower's mail to an address designated by GFC; to open and
dispose of all mail addressed to Borrower; and to do all other things GFC deems
reasonably necessary or desirable to carry out the terms of this Agreement.
Borrower hereby ratifies and approves all acts of such attorney. Neither GFC
nor any of its designees shall be liable for any acts or omissions nor for any
error of judgment or mistake of fact or law while acting as Borrower's
attorney, except for GFC's gross negligence or willful misconduct. This power,
being coupled with an interest, is irrevocable until the Obligations have been
fully satisfied and GFC's obligation to provide loans hereunder shall have
terminated.
9. RECEIVABLES.
9.1 Eligibility. Borrower represents and warrants that each Receivable covers
and shall cover a bona fide sale or lease and delivery by it of goods or the
rendition by it of services in the ordinary course of its business, and shall
be for a liquidated amount and GFC's security interest shall not be subject to
any offset, deduction, counterclaim, rights of return or cancellation, lien or
other condition. If any representation or warranty herein is breached as to
any Receivable or any Receivable ceases to be an Eligible Receivable for any
reason other than payment thereof, then GFC may, in addition to its other
rights hereunder, designated any and all Receivables owing by that account
debtor as not Eligible Receivables; provided, that GFC shall in any such event
retain its security interest in all Receivables, whether or not Eligible
Receivables, until the Obligations have been fully satisfied and GFC's
obligation to provide loans hereunder has terminated.
9.2 Disputes. Borrower shall notify GFC promptly of all disputes or claims
and settle or adjust such disputes or claims at no expense to GFC, but no
discount, credit or allowance shall be granted to any account debtor and no
returns of merchandise shall be accepted by Borrower without GFC's consent,
except for discounts, credits and allowances made or given in the ordinary
course of Borrower's business, provided if no Event of Default has occurred and
is continuing, Borrower may grant adjustments to the ineligible Receivables.
GFC may, at any time after the occurrence of an Event of Default, settle or
adjust disputes or claims directly with account debtors for amounts and upon
terms which GFC considers advisable in its reasonable credit judgment and, in
all cases, GFC shall credit Borrower's loan account with only the net amounts
received by GFC in payment of any Receivables.
10. EQUIPMENT.
Borrower shall keep and maintain the Equipment in good operating condition and
repair and make all necessary replacements thereto to maintain and preserve the
value and operating efficiency thereof at all times consistent with Borrower's
past practice, ordinary wear and tear excepted. Borrower shall not permit any
item of Equipment to become a fixture (other than a trade fixture) to real
estate or an accession to other property.
11. OTHER LIENS; NO DISPOSITION OF COLLATERAL.
Borrower represents, warrants and covenants that (a) all Collateral is and
shall continue to be owned by it free and clear of all liens, claims and
encumbrances whatsoever (except for GFC's security interest, Permitted
Encumbrances, and such other liens, claims and encumbrances as may be permitted
by GFC in its sole discretion from time to time in writing), and (b) Borrower
shall not, without GFC's prior written approval, sell, encumber or dispose of
or permit the sale, encumbrance or disposal of any Collateral or any interest
of Borrower therein, except for the sale of Inventory in the ordinary course of
Borrower's business. The proceeds of any such sales shall be remitted to GFC
pursuant to this Agreement for application to the Obligations.
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12. GENERAL REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants that:
12.1 Due Organization. It is a corporation duly organized, validly existing
and in good standing under the laws of the State set forth on the Schedule, is
qualified and authorized to do business and is in good standing in all states
in which such qualification and good standing are necessary in order for it to
conduct its business and own its property, and has all requisite power and
authority to conduct its business as presently conducted, to own its property
and to execute and deliver each of the Loan Documents to which it is a party
and perform all of its Obligations thereunder;
12.2 Other Names. Borrower has not, during the preceding five (5) years, been
known by or used any other corporate or fictitious name except as set forth on
the Schedule, nor has Borrower been the surviving corporation of a merger or
consolidation or acquired all or substantially all of the assets of any person
during such time;
12.3 Due Authorization. The execution, delivery and performance by Borrower
of the Loan Documents to which it is a party have been authorized by all
necessary corporate action and do not and shall not constitute a violation of
any applicable law or of Borrower's Articles or Certificate of Incorporation or
By-Laws or any other document, agreement or instrument to which Borrower is a
party or by which Borrower or its assets are bound;
12.4 Binding Obligation. Each of the Loan Documents to which Borrower is a
party is the legal, valid and binding obligation of Borrower enforceable
against Borrower in accordance with its terms;
12.5 Intangible Property. Borrower possesses adequate assets, licenses,
patents, patent applications, copyrights, trademarks, trademark applications
and trade names for the present and planned future conduct of its business
without any known conflict with the rights of others, and each is valid and has
been duly registered or filed with the appropriate governmental authorities;
12.6 Capital. Borrower has capital sufficient to conduct its business, is
able to pay its debts as they mature and owns property having a fair salable
value greater than the amount required to pay all of its debts (including
contingent debts);
12.7 Material Litigation. Borrower has no pending or overtly threatened
litigation, actions or proceedings which would materially and adversely affect
its business, assets, operations, prospects or condition, financial or
otherwise, or the Collateral or any of GFC's interests therein;
12.8 Title: Security Interests of GFC. Borrower has good, indefeasible and
merchantable title to the Collateral and, upon the filing of UCC-1 Financing
Statements and the recording of any mortgages or deeds of trust with respect to
real property, in each case in the appropriate offices, this Agreement and such
documents shall create valid and perfected first priority liens in the
Collateral, subject only to Permitted Encumbrances;
12.9 Restrictive Agreement: Labor Contracts. Borrower is not a party or
subject to any contract or subject to any charge, corporate restriction,
judgment, decree or order materially and adversely affecting its business,
assets, operations, prospects or condition, financial or otherwise, or which
restricts its right or ability to incur Indebtedness, and it is not party to
any labor dispute. In addition, no labor contract is scheduled to expire
during the Initial Term of this Agreement, except as disclosed to GFC in
writing prior to the date hereof;
12.10 Laws. Borrower is not in violation of any applicable statute,
regulation, ordinance or any order of any court, tribunal or governmental
agency, in any respect materially and adversely affecting the Collateral or its
business, assets, operations, prospects or condition, financial or otherwise;
12.11 Consents. Borrower has obtained or caused to be obtained or issued any
required consent of a governmental agency or other Person in connection with
the financing contemplated hereby;
12.12 Defaults. Borrower is not in default with respect to any note,
indenture, loan agreement, mortgage, lease, deed or other agreement to which it
is a party or by which it or its assets are bound, nor has any event occurred
which, with the giving of notice or the lapse of time, or both, would cause such
a default;
12.13 Financial Condition. The Prepared Financials fairly present Borrower's
financial condition and results of operations and those of such other Persons
described therein as of the date thereof; there are no material
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omissions from the Prepared Financials or other facts or circumstances not
reflected in the Prepared Financials; and there has been no material and
adverse change in such financial condition or operations since the date of the
initial Prepared Financials delivered to GFC hereunder;
12.14 ERISA. None of Borrower, any ERISA Affiliate, or any Plan is or has
been in violation of any of the provisions of ERISA, any of the qualification
requirements of IRC Section 401(a) or any of the published interpretations
thereunder, nor has Borrower or any ERISA Affiliate received any notice to such
effect. No notice of intent to terminate a Plan has been filed under Section
4041 of ERISA, nor has any Plan been terminated under ERISA. The PBGC has not
instituted proceedings to terminate, or appointed a trustee to administer, a
Plan. No lien upon the assets of Borrower has arisen with respect to a Plan.
No prohibited transaction or Reportable Event has occurred with respect to a
Plan. Neither Borrower nor any ERISA Affiliate has incurred any withdrawal
liability with respect to any Multiemployer Plan. Borrower and each ERISA
Affiliate have made all contributions required to be made by them to any Plan
or Multiemployer Plan when due. There is no accumulated funding deficiency in
any Plan, whether or not waived;
12.15 Taxes. Borrower has filed all tax returns and such other reports as it
is required by law to file and has paid or made adequate provision for the
payment on or prior to the date when due of all taxes, assessments and similar
charges that are due and payable;
12.16 Locations. Borrower's chief executive office and the offices and
locations where it keeps the Collateral (except for Inventory in transit) are at
the locations set forth on the Schedule, except to the extent that such
locations may have been changed after notice to GFC in accordance with Section
13.5 below;
12.17 Business Relationships. There exists no actual or threatened
termination, cancellation or limitation of, or any modification or change in,
the business relationship between Borrower and any customer or any group of
customers whose purchases individually or in the aggregate are material to the
business of Borrower, or with any material supplier, and there exists no
present condition or state of facts or circumstances which would materially and
adversely affect Borrower or prevent Borrower from conducting such business
after the consummation of the transactions contemplated by this Agreement in
substantially the same manner in which it has heretofore been conducted; and
12.18 Reaffirmations. Each request for a loan made by Borrower pursuant to
this Agreement shall constitute (i) an automatic representation and warranty by
Borrower to GFC that there does not then exist any Event of Default and (ii) a
reaffirmation as of the date of said request of all of the representations and
warranties of Borrower contained in this Agreement and the other Loan Documents.
13. AFFIRMATIVE COVENANTS.
Borrower covenants that, so long as any Obligation remains outstanding and this
Agreement is in effect, it shall:
13.1 Expenses. Promptly reimburse GFC for all reasonable costs, fees and
expenses incurred by GFC in connection with the negotiation, preparation,
execution, delivery, administration and enforcement of each of the Loan
Documents, including, but not limited to, the attorneys' and paralegals' fees
of in-house and outside counsel, expert witness fees, lien, title search and
insurance fees, appraisal fees, all charges and expenses incurred in connection
with any and all environmental reports and environmental remediation
activities, and all other costs, expenses, taxes and filing or recording fees
payable in connection with the transactions contemplated by this Agreement,
including without limitation all such costs, fees and expenses as GFC shall
incur or for which GFC shall become obligated in connection with (i) any
inspection or verification of the Collateral, (ii) any proceeding relating to
the Loan Documents or the Collateral, (iii) actions taken with respect to the
Collateral and GFC's security interest therein, including, without limitation,
the defense or prosecution of any action involving GFC and Borrower or any
third party, (iv) enforcement of any of GFC's rights and remedies with respect
to the Obligations or Collateral, and (v) consultation with GFC's attorneys and
participation in any workout, bankruptcy or other insolvency or other
proceeding involving any Loan Party or any Affiliate, whether or not suit is
filed. Borrower shall also pay all GFC's out-of-pocket charges in connection
with bank wire transfers, forwarding of loan proceeds, deposits of checks and
other items of payment, returned checks, establishment and maintenance of
lockboxes and other Blocked Accounts, and all other bank and administrative
matters, in accordance with GFC's schedule of bank and
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administrative fees and charges in effect from time to time;
13.2 Taxes. File all tax returns and pay or make adequate provision for the
payment of all taxes, assessments and other charges on or prior to the date
when due;
13.3 Notice of Litigation. Promptly notify GFC in writing of any litigation,
suit or administrative proceeding which may materially and adversely affect the
Collateral or Borrower's business, assets, operations, prospects or condition,
financial or otherwise, whether or not the claim is covered by insurance;
13.4 ERISA. Notify GFC in writing (i) promptly upon the occurrence of any
event described in Paragraph 4043 of ERISA, other than a termination, partial
termination or merger of a Plan or a transfer of a Plan's assets and (ii) prior
to any termination, partial termination or merger of a Plan or a transfer of a
Plan's assets;
13.5 Change in Location. Notify GFC in writing forty-five (45) days prior to
any change in the location of Borrower's chief executive office or the location
of any Collateral, or Borrower's opening or closing of any other place of
business;
13.6 Corporate Existence. Maintain its corporate existence and its
qualification to do business and good standing in all states necessary for the
conduct of its business and the ownership of its property and maintain adequate
assets, licenses, patents, copyrights, trademarks and trade names for the
conduct of its business;
13.7 Labor Disputes. Promptly notify GFC in writing of any labor dispute to
which Borrower is or may become subject and the expiration of any labor
contract to which Borrower is a party or bound;
13.8 Violations of Law. Promptly notify GFC in writing of any violation of
any law, statute, regulation or ordinance of any governmental entity, or of any
agency thereof, applicable to Borrower which may materially and adversely affect
the Collateral or Borrower's business, assets, prospects, operations or
condition, financial or otherwise;
13.9 Defaults. Notify GFC in writing within five (5) business days of
Borrower's default under any note, indenture, loan agreement, mortgage, lease
or other agreement to which Borrower is a party or by which Borrower is bound,
or of any other default under any Indebtedness of Borrower;
13.10 Capital Expenditures. Promptly notify GFC in writing of the making of
any Capital Expenditure materially affecting Borrower's business, assets,
prospects, operations or condition, financial or otherwise;
13.11 Books and Records. Keep adequate records and books of account with
respect to its business activities in which proper entries are made in
accordance with generally accepted accounting principles consistently applied,
reflecting all of its financial transactions;
13.12 Leases; Warehouse Agreements. Provide GFC with (i) copies of all
agreements between Borrower and any landlord or warehouseman which owns any
premises at which any Collateral may, from time to time, be located, and (ii)
without limiting the landlord and mortgage waivers to be provided pursuant to
Section 2.1(j) above, landlord and mortgage waivers in form acceptable to GFC
with respect to all locations where any Collateral is hereafter located;
13.13 Additional Documents. At GFC's request, promptly execute or cause to be
executed and delivered to GFC any and all documents, instruments or agreements
deemed necessary by GFC to facilitate the collection of the Obligations or the
Collateral or otherwise to give effect to or carry out the terms or intent of
this Agreement or any of the other Loan Documents. Without limiting the
generality of the foregoing, if any of the Receivables with a face value in
excess of $10,000.00 arises out of a contract with the United States of America
or any department, agency, subdivision or instrumentality thereof, Borrower
shall promptly notify GFC of such fact in writing and shall execute any
instruments and take any other action required or requested by GFC to comply
with the provisions of the Federal Assignment of Claims Act; and
13.14 Financial Covenants. Comply with the financial covenants set forth on
the Schedule.
13.15 Landlord Waiver. Within ninety days of the date hereof obtain a
landlord waiver from the lessor of the Irvine, California location, in form and
substance acceptable to GFC.
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14. NEGATIVE COVENANTS.
Without GFC's prior written consent, which consent GFC may withhold in its
sole discretion (provided that as to Sections 14.2 and 14.12, GFC may withhold
its consent in its discretion, reasonably exercised), so long as any Obligation
remains outstanding and this Agreement is in effect, Borrower shall not:
14.1 Mergers. Merge or consolidate with or acquire any other Person, or make
any other material change in its capital structure or in its business or
operations which might adversely affect the repayment of the Obligations:
14.2 Loans. Make advances, loans or extensions of credit to, or invest in,
any Person exceeding $250,000 in the aggregate for all Persons;
14.3 Dividends. Declare or pay cash dividends upon any of its stock or
distribute any of its property or redeem, retire, purchase or acquire directly
or indirectly any of its stock;
14.4 Adverse Transactions. Enter into any transaction which materially and
adversely affects the Collateral or its ability to repay the Obligations in
full as and when due;
14.5 Indebtedness of Others. Become directly or contingently liable for the
Indebtedness of any Person, except by endorsement of instruments for deposit;
14.6 Repurchase. Make a sale to any customer on a xxxx-and-hold, guaranteed
sale, sale and return, sale on approval, consignment, or any other repurchase
or return basis;
14.7 Name. Use any corporate or fictitious name other than its corporate name
as set forth in its Articles or Certificate of Incorporation on the date hereof
or as set forth on the Schedule;
14.8 Prepayment. Prepay any Indebtedness other than trade payables and other
than the Obligations;
14.9 Intentionally Omitted.
14.10 Compensation. Pay total compensation, including salaries, withdrawals,
fees, bonuses, commissions, drawing accounts and other payments, whether
directly or indirectly, in money or otherwise, during any fiscal year to all of
Borrower's executives, officers and directors (or any relative thereof) in an
amount in excess of the amount set forth on the Schedule;
14.11 Intentionally Omitted.
14.12 Affiliate Transactions. Except as set forth below or in Section 14.2
above, sell, transfer, distribute or pay any money or property to any
Affiliate, or invest in (by capital contribution or otherwise) or purchase or
repurchase any stock or Indebtedness, or any property, of any Affiliate, or
become liable on any guaranty of the indebtedness, dividends or other
obligations of any Affiliate. Notwithstanding the foregoing, Borrower may pay
compensation permitted by Section 14.10 to employees who are Affiliates and, if
no Event of Default has occurred, Borrower may engage in transactions with
Affiliates in the normal course of business, in amounts and upon terms which
are fully disclosed to GFC and which are not less favorable to Borrower than
would be obtainable in a comparable arm's length transaction with a Person who
is not an Affiliate;
14.13 Nature of Business. Enter into any new business or make any material
change in any of Borrower's business objectives, purposes or operations;
14.14 GFC's Name. Use the name of GFC in connection with any of Borrower's
business or activities, except in connection with internal business matters or
as required in dealings with governmental agencies and financial institutions
or with trade creditors of Borrower, solely for credit reference purposes; or
14.15 Margin Security. Own, purchase or acquire (or enter into any contract to
purchase or acquire) any "margin security" as defined by any requlation of the
Federal Reserve Board as now in effect or as the same may herafter be in effect.
15. ENVIRONMENTAL MATTERS.
15.1 Definitions. The following definitions apply to the provisions of this
Section 15:
(1) the term "Applicable Law" shall include, but shall not be limited to, each
statute named or referred to in this Section 15.1 and all rules and regulations
thereunder, and any other local, state and/or federal laws, rules, regulations
or ordinances, whether currently in existence or hereafter enacted, which
govern, to the extent applicable to the Property or to Borrower, (i) the
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existence, cleanup and/or remedy of contamination on real property; (ii) the
protection of the environment from soil, air or water pollution, or from
spilled, deposited or otherwise emplaced contamination; (iii) the emission or
discharge of hazardous substances into the environment; (iv) the control of
hazardous wastes; or (v) the use, generation, transport, treatment, removal or
recovery of Hazardous Substances;
(b) The term "Hazardous Substance" shall mean (i) any oil, flammable
substance, explosives, radioactive materials, hazardous wastes or substances,
toxic wastes or substances or any other wastes, materials or pollutants which
either pose a hazard to the Property or to persons on or about the Property or
cause the Property to be in violation of any Applicable Law; (ii) asbestos in
any form which is or could become friable, urea formaldehyde foam insulation,
transformers or other equipment which contain dielectric fluid containing
levels of polychlorinated biphenyls, or radon gas; (iii) any chemical, material
or substance defined as or included in the definition of "hazardous
substances," "waste," "hazardous wastes," "hazardous materials," "extremely
hazardous waste," "restricted hazardous waste," or "toxic substances" or words
of similar import under any Applicable Law, including, but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 USC Sections 9601 et seq.; the Resource Conservation and
Recovery Act ("RCRA"), 42 USC Sections 6901 et seq.; the Hazardous Materials
Transportation Act, 49 USC Sections 1801 et seq.; the Federal Water Pollution
Control Act, 33 USC Sections 1251 et seq.; the California Hazardous Waste
Common Law ("HWCL"), Cal. Health & Safety Sections 25100 et seq.; the
Underground Storage of Hazardous Substances Act (Cal. Health & Safety Sections
25280 et seq.; Hazardous Substance Account Act ("HSAA"), Cal. Health & Safety
Code Sections 25300 et seq.; the Xxxxxx-Cologne Water Quality Control Act (the
"Xxxxxx-Cologne Act"), Cal. Water Code Sections 13000 et seq.; the Safe
Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65); Title 22 of
the California Code of Regulations, Division 4, Chapter 30; (iv) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any governmental authority which may or could pose a hazard to the
health or safety of the occupants of the Property or the owners and/or
occupants of property adjacent to or surrounding the Property, or any other
person coming upon the Property or adjacent property; and (v) any other
chemical, materials or substance which may or could pose a hazard to the
environment; and
(c) the term "Property" shall mean all real property, wherever located, in
which Borrower or any Affiliate of Borrower has any right, title or interest,
whether now existing or hereafter arising, and including, without limitation,
as owner, lessor or lessee.
15.2 Covenants and Representations.
(a) Borrower represents and warrants that, (x) to the best of its knowledge,
at no time have there been, and (y) during the period of Borrower's possession
of any interest in the Property, Borrower has not been involved in, any
activities on the Property involving, directly or indirectly, the use,
generation, treatment, storage or disposal of any Hazardous Substances except
in compliance with Applicable Law (i) under, on or in the land included in the
Property, whether contained in soil, tanks, sumps, ponds, lagoons, barrels,
cans or other containments, structures or equipment, (ii) incorporated in the
buildings, structures or improvements included in the Property, including any
building material containing asbestos, or (iii) used in connection with any
operations on or in the Property.
(b) Without limiting the generality of the foregoing and to the extent not
included within the scope of this Section 15.2, Borrower represents and
warrants that it is in full compliance with Applicable Law and has received no
notice from any person or any governmental agency or other entity of any
violation by Borrower or its Affiliates of any Applicable Law.
(c) Borrower shall be solely responsible for and agrees to indemnify GFC,
protect and defend GFC with counsel reasonably acceptable to GFC, and hold GFC
harmless from and against any claims, actions, administrative proceedings,
judgments, damages, punitive damages, penalties, fines, costs, liabilities
(including sums paid in settlements of claims), interest or losses, attorneys'
fees (including any fees and expenses incurred in enforcing this indemnity),
consultant fees, expert fees, and other out-of-pocket costs or expenses
actually incurred by GFC (collectively, the "Environmental Costs"), that may,
at any time or from time to time, arise directly or indirectly from or in
connection with any of the following for which Borrower or any of its
Affiliates is responsible or is currently aware of or with reasonable diligence
should be aware of; (i) the presence, suspected presence, release or suspected
release of any Hazardous Substance whether into the air, soil, surface
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water or groundwater of or at the Property, or any other violation of
Applicable Law, or (ii) any breach of the foregoing representations and
covenants; except to the extent any of the foregoing result from the actions of
GFC, its employees, agents and representatives. All reasonable Environmental
Costs incurred or advanced by GFC shall be deemed to be made by GFC in good
faith and shall constitute Obligations hereunder.
16. TERM; TERMINATION.
16.1 Term. The initial term of this Agreement shall be as set forth on the
Schedule (the "Initial Term") and shall be automatically renewed for successive
periods of one (1) year (each, a "Renewal Term"), unless earlier terminated as
provided herein.
16.2 Prior Notice. Each party shall have the right to terminate this
Agreement at the end of the Initial Term or at the end of any Renewal Term by
giving the other party written notice not less than sixty (60) days prior to
the effective date of such termination, by registered or certified mail.
16.3 Payment in Full. Upon the effective date of termination, the Obligations
shall become immediately due and payable in full in cash.
16.4 Early Termination; Termination Fee. In addition to the procedure set
forth in Section 16.2, Borrower may terminate this Agreement at any time but
only upon sixty (60) days' prior written notice and prepayment of the
Obligations. Upon any such early termination by Borrower or any termination of
this Agreement by GFC upon the occurrence of an Event of Default, the, and in
any such event, Borrower shall pay to GFC upon the effective date of such
termination a fee (the "Termination Fee") in an amount equal to the amount
shown on the Schedule.
17. DEFAULT.
17.1 Events of Default. Anyone or more of the following events shall
constitute an Event of Default under this Agreement:
(a) Borrower fails to pay when due and payable any portion of the Obligations
at stated maturity, upon acceleration or otherwise;
(b) Borrower or any other Loan Party fails or neglects to perform, keep, or
observe any term, provision, condition, covenant or agreement contained in any
Loan Document to which Borrower or such other Loan Party is a party;
(c) Any material adverse change occurs in Borrower's business, assets,
operations, prospects or condition, financial or otherwise;
(d) The prospect of repayment of any portion of the Obligations or the value or
priority of GFC's security interest in the Collateral is materially impaired;
(e) Any material portion of Borrower's assets is seized, attached, subjected
to a writ or distress warrant, is levied upon or comes into the possession of
any judicial officer and not released within 5 days thereafter;
(f) Borrower shall generally not pay its debts as they become due or shall
enter into any agreement (whether written or oral), or offer to enter into any
agreement, with all or a significant number of its creditors regarding any
moratorium or other indulgence with respect to its debts or the participation
of such creditors or their representatives in the supervision, management or
control of the business of Borrower;
(g) Any bankruptcy or other insolvency proceeding is commenced by Borrower, or
any such proceeding is commenced against Borrower and remains undischarged or
unstayed for forty-five (45) days;
(h) Any notice of lien, levy or assessment in excess of $25,000 is filed of
record with respect to any of Borrower's assets (subject to GFC's right to
create reserves for amount below the foregoing);
(i) Any judgments are entered against Borrower in an aggregate amount
exceeding $50,000 (subject to GFC's right to create reserves for amounts below
the foregoing);
(j) Any default shall occur under any material agreement between Borrower and
any third party including, without limitation, any default which would result
in a right by such third party to accelerate the maturity of any material
Indebtedness of Borrower to such third party;
(k) Any representation or warranty made or deemed to be made by Borrower, any
Affiliate or any other Loan Party in any Loan Document or any other statement,
document or report made or delivered to GFC in connection therewith shall prove
to have been misleading in any material respect;
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(1) If more than one Guarantor dies, or if any Guarantor terminates or
attempts to terminate its Guaranty or any security therefor or becomes subject
to any bankruptcy or other insolvency proceeding;
(m) Any Prohibited Transaction or Reportable Event shall occur with respect to
a Plan which could have a material adverse effect on the financial condition of
Borrower; any lien upon the assets of Borrower in connection with any Plan
shall arise; Borrower or any of its ERISA Affiliates shall fail to make full
payment when due of all amounts which Borrower or any of its ERISA Affiliates
may be required to pay to any Plan or any Multiemployer Plan as one or more
contributions thereto; Borrower or any of its ERISA Affiliates creates or
permits the creation of any accumulated funding deficiency, whether or not
waived; or
(n) Any transfer of more than ten percent (10%) of the issued and outstanding
shares of common stock or other evidence of ownership of Borrower.
17.2 Remedies. Upon the occurrence of an Event of Default, GFC may, at its
option and in its sole discretion and in addition to all of its other rights
under the Loan Documents, terminate this Agreement and declare all of the
Obligations to be immediately payable in full. GFC shall also have all of its
rights and remedies under applicable law, including, without limitation, the
default rights and remedies of a secured party under the Code. Further, GFC
may, at any time, take possession of the Collateral and keep it on Borrower's
premises, at no cost to GFC, or remove any part of it to such other place(s) as
GFC may desire, or Borrower shall, upon GFC's demand, at Borrower's sole cost,
assemble the Collateral and make it available to GFC at a place reasonably
convenient to GFC. GFC may sell and deliver any Collateral at public or
private sales, for cash, upon credit or otherwise, at such prices and upon such
terms as GFC deems advisable, at GFC's discretion, and may, if GFC deems it
reasonable, postpone or adjourn any sale of the Collateral by an announcement
at the time and place of sale or of such postponed or adjourned sale without
giving a new notice of sale. Borrower agrees that GFC has no obligation to
preserve rights to the Collateral or xxxxxxxx any Collateral for the benefit of
any Person. GFC is hereby granted a license or other right to use, without
charge, Borrower's labels, patents, copyrights, name, trade secrets, trade
names, trademarks and advertising matter, or any similar property, in
completing production, advertising or selling any Collateral and Borrower's
rights under all licenses and all franchise agreements shall inure to GFC's
benefit. Any requirement of reasonable notice shall be met if such notice is
mailed postage prepaid to Borrower at its address set forth in the heading to
this Agreement at least five (5) days before sale or other disposition. The
proceeds of sale shall be applied, first, to all attorneys fees and other
expenses of sale, and second, to the Obligations in such order as GFC shall
elect, in its sole discretion. GFC shall promptly return any excess to
Borrower and Borrower shall remain liable for any deficiency to the fullest
extent permitted by law.
17.3 Standards for Determining Commercial Reasonableness. Borrower and GFC
agree that the following conduct by GFC with respect to any disposition of
Collateral shall conclusively be deemed commercially reasonable (but other
conduct by GFC, including, but not limited to, GFC's use in its sole discretion
of other or different times, places and manners of noticing and conducting any
disposition of Collateral shall not be deemed unreasonable): Any public or
private disposition; (i) as to which on no later than the fifth calendar day
prior thereto written notice thereof is mailed or personally delivered to
Borrower and, with respect to any public disposition, no later than the
fifth calendar day prior thereto notice thereof describing in general
non-specific terms, the Collateral to be disposed of is published once in a
newspaper of general circulation in the county where the sale is to be
conducted (provided that no notice of any public or private disposition need be
given to the Borrower or published if the Collateral is perishable or threatens
to decline speedily in value or is of a type customarily sold on a recognized
market); (ii) which is conducted at any place designated by GFC, with or
without the Collateral being present; and (iii) which commences at any time
between 8:00 a.m. and 5:00 p.m. Without limiting the generality of the
foregoing, Borrower expressly agrees that, with respect to any disposition of
accounts, instruments and general intangibles, it shall be commercially
reasonable for GFC to direct any perspective purchaser thereof to ascertain
directly from Borrower any and all information concerning the same, including,
but not limited to, the terms of payment, aging and delinquency, if any, the
financial condition of any obligor or account debtor thereon or guarantor
thereof, and any collateral therefor.
18. DEFINITIONS.
18.1 Defined Terms. As used in this Agreement, the following terms have the
definitions set forth below:
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"Affiliate" means any Person controlling, controlled by or under common control
with Borrower. For purposes of this definition, "control" means the
possession, directly or indirectly, of the power to direct or cause direction
of the management and policies of any Person, whether through ownership of
common or preferred stock or other equity interests, by contract or otherwise.
Without limiting the generality of the foregoing, each of the following shall
be an Affiliate: any officer, director, employee or other agent of Borrower,
any shareholder or subsidiary of Borrower, and any other Person with whom or
which Borrower has common shareholders, officers or directors.
"Business Day" means any day on which commercial banks in both Los Angeles,
California and Phoenix, Arizona are open for business.
"Capital Expenditures" means all expenditures made and liabilities incurred for
the acquisition of any fixed asset or improvement, replacement, substitution or
addition thereto which has a useful life of more than one year and including,
without limitation, those arising in connection with Capital Leases.
"Capital Lease" means any lease of property by Borrower that, in accordance
with generally accepted accounting principles, should be capitalized for
financial reporting purposes and reflected as a liability on the balance sheet
of Borrower.
"Code" means the Uniform Commercial Code as adopted and in effect in the State
of Arizona from time to time.
"Collateral" has the meaning set forth in Section 4.1 above.
"Current Liabilities" at any date means the amount at which the current
liabilities of Borrower would be shown on a balance sheet of Borrower as at
such date, prepared in accordance with generally accepted accounting principles.
"Deposit Accounts" has the meaning set forth in Section 9105 of the California
Commercial Code.
"Eligible Inventory" means Inventory which GFC, in its sole judgment, deems
Eligible Inventory, based on such considerations as GFC may from time to time
deem appropriate. Without limiting the generality of the foregoing, no
Inventory shall be Eligible Inventory unless, in GFC's sole judgment, such
Inventory (i) consists of raw materials or finished goods, in good, new and
salable condition which are not obsolete or unmerchantable, and are not
comprised of packaging, materials or supplies; (iii) meets all standards
imposed by any governmental agency or authority; (iv) conforms in all respects
to the warranties and representations set forth herein; (v) is at all times
subject to GFC's duly perfected, first priority security interest; and (vi) is
situated at a location in compliance with Section 12.16 hereof.
"Eligible Receivables" means Receivables arising in the ordinary course of
Borrower's business from the sale of goods or rendition of services which GFC,
in its sole judgment, shall deem eligible based on such considerations as GFC
may from time to time deem appropriate. Without limiting the foregoing, a
Receivable shall not be deemed to be an Eligible Receivable if (i) the account
debtor has failed to pay the Receivable within a period of ninety (90) days
after invoice date or, if the goods relating thereto are sold on a C.O.D.
basis, thirty (30) days after invoice date, in each case to the extent of any
amount remaining unpaid after such period; (ii) the account debtor has failed
to pay more than twenty-five percent (25%) of all outstanding Receivables owed
by it to Borrower within ninety (90) days after invoice date; (iii) the account
debtor is an Affiliate of Borrower; (iv) the goods relating thereto are placed
on consignment, guaranteed sale, evaluation or other terms pursuant to which
payment by the account debtor may be conditional; (v) the account debtor is not
located in the United States or Canada, unless the Receivable is supported by a
letter of credit or other form of guaranty or security, in each case in form
and substance satisfactory to GFC or insured by FCIA insurance, in form and
substance satisfactory to GFC; (vi) the account debtor is the United States or
any department, agency or instrumentality thereof or, any State, city or
municipality of the United States unless, as to any State, city or
municipality, the sale is evidenced by a purchase order and not a contract;
(vii) Borrower becomes liable to the account debtor for goods sold or services
rendered by the account debtor to Borrower if the liability is in excess of
15% of the outstanding Receivables of the account debtor in question; (viii)
the account debtor's total obligations to Borrower exceed twenty percent (20%)
of all Eligible Receivables, to the extent of such excess; (ix) the account
debtor disputes liability or makes any claim with respect thereto (up to the
amount of such liability or claim), or is subject to any insolvency or
bankruptcy proceeding, or becomes insolvent, fails or goes out of a material
portion of its
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business; (x) the amount thereof consists of late charges or finance charges;
(xi) the amount thereof consists of a credit balance more than ninety (90) days
past due; or (xii) the face amount of any single invoice thereof exceeds
$20,000.00, unless accompanied by evidence of shipment of the goods relating
thereto satisfactory to GFC in its sole discretion.
"Equipment" means all of Borrower's present and hereafter acquired machinery,
molds, machine tools, motors, furniture, equipment, furnishings, fixtures, trade
fixtures, motor vehicles, tools, parts, dyes, jigs, goods and other tangible
personal property (other than Inventory) of every kind and description used in
Borrower's operations or owned by Borrower and any interest in any of the
foregoing, and all attachments, accessories, accessions, replacements,
substitutions, additions or improvements to any of the foregoing, wherever
located.
"ERISA" means the Employment Retirement Income Security Act of 1974, as
amended, and the regulations thereunder.
"ERISA Affiliate" means each trade or business (whether or not incorporated and
whether or not foreign) which is or may hereafter become a member of a group of
which Borrower is a member and which is treated as a single employer under ERISA
Section 4001(b)(1), or IRC Section 414.
"Event of Default" means any of the events set forth in Section 17.1 of this
Agreement.
"Floorplan Loans" has the meaning set forth on the Schedule.
"Floorplanned Inventory" means all Qualified Inventory financed by GFC pursuant
to Section 1.4 of this Agreement.
"General Intangibles" means all general intangibles of Borrower, whether now
owned or hereafter created or acquired by Borrower, including, without
limitation, all chosen in action, causes of action, corporate or other business
records, Deposit Accounts, inventions, designs, drawings, blueprints, patents,
patent applications, trademarks and the goodwill of the business symbolized
thereby, names, trade names, trade secrets, goodwill, copyrights,
registrations, licenses, franchises, customer lists, security and other
deposits, rights in all litigation presently or hereafter pending for any cause
or claim (whether in contract, tort or otherwise), and all judgments now or
hereafter arising therefrom, all claims of Borrower against GFC, rights to
purchase or sell real or personal property, rights as a licensor or licensee of
any kind, royalties, telephone numbers, proprietary information, purchase
orders, and all insurance policies and claims (including without limitation
credit, liability, property and other insurance) tax refunds and claims,
computer programs, discs, tapes and tape files, claims under guaranties,
security interests or other security held by or granted to Borrower to secure
payment of any of the Receivables by an account debtor, all rights to
indemnification and all other intangible property of every kind and nature
(other than Receivables).
"Guarantors" means the persons set forth on the Schedule.
"Indebtedness" means all of Borrower's present and future obligations,
liabilities, debts, claims and indebtedness, contingent, fixed or otherwise,
however evidenced, created, incurred, acquired, owing or arising, whether under
written or oral agreement, operation of law or otherwise, and includes, without
limiting the foregoing (i) the Obligations, (ii) obligations and liabilities of
any Person secured by a lien, claim, encumbrance or security interest upon
property owned by Borrower, even though Borrower has not assumed or become
liable therefor, (iii) obligations and liabilities created or arising under any
lease (including Capital Leases) or conditional sales contract or other title
retention agreement with respect to property used or acquired by Borrower, even
though the rights and remedies of the lessor, seller or lender are limited to
repossession, (iv) all unfunded pension fund obligations and liabilities and
(v) deferred taxes.
"Initial Term" has the meaning set forth on the Schedule.
"Inventory" means all of Borrower's now owned and hereafter acquired goods,
merchandise or other personal property, wherever located, to be furnished under
any contract of service or held for sale or lease, all raw materials, work in
process, finished goods and materials and supplies of any kind, nature or
description which are or might be used or consumed in Borrower's business or
used in connection with the manufacture, packing, shipping, advertising,
selling or finishing of such goods, merchandise or other personal property, and
all documents of title or other documents representing them.
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"Inventory Loans" has the meaning set forth on the Schedule.
"IRC" means the Internal Revenue Code of 1986, as amended, and the regulations
thereunder.
"Loan Documents" means, collectively, this Agreement, any note or notes
executed by Borrower and payable to GFC, and any other agreement entered into
in connection with this Agreement, together with all alterations, amendments,
changes, extensions, modifications, refinancings, refundings, renewals,
replacements, restatements, or supplements, of or to any of the foregoing.
"Loan Party" means Borrower, each Guarantor and each other party (other than
GFC) to any Loan Document.
"Minimum Working Capital" at any date means an amount equal to (i) the sum of
the amounts at which Borrower's cash, Receivables, Inventory (calculated at the
lower of cost or market and determined on a first-in, first-out basis) and the
current portion of deferred tax assets would be shown on a balance sheet of
Borrower at such date prepared in accordance with generally accepted accounting
principles, provided that amounts due from Affiliates shall be excluded
therefrom, minus (ii) current liabilities of Borrower at such date.
"Multiemployer Plan" means a "multiemployer plan" as defined in ERISA Sections
3(37) or 4001(a)(3) or IRC Section 414(f) which covers employees of Borrower or
any ERISA Affiliate.
"Obligations" means all present and future loans, advances, debts, liabilities,
obligations, covenants, duties and indebtedness at any time owing by Borrower
to GFC, whether evidenced by this Agreement, any note or other instrument or
document, whether arising from an extension of credit, opening of a letter of
credit, banker's acceptance, loan, guaranty, indemnification or otherwise,
whether direct or indirect (including, without limitation, those acquired by
assignment and any participation by GFC in Borrower's debts owing to others),
absolute or contingent, due or to become due, including, without limitation,
all interest, charges, expenses, fees, attorney's fees, expert witness fees,
examination fees, letter of credit fees, collateral monitoring fees, closing
fees, facility fees, Termination Fees, Minimum Interest Charges and any other
sums chargeable to Borrower hereunder or under any other agreement with GFC.
"Overlines" has the meaning set forth in Section 1.3 hereof.
"PBGC" means the Pension Benefit Guarantee Corporation.
"Permitted Encumbrances" means each of the liens, mortgages and other security
interests set forth on the Schedule and incorporated herein by this reference.
"Person" means any individual, sole proprietorship, partnership, joint venture,
trust, unincorporated organization, association, corporation, government, or
any agency or political division thereof, or any other entity.
"Plan" means any plan described in ERISA Section 3(2) maintained for employees
of Borrower or any ERISA Affiliate, other than a Multiemployer Plan.
"Prepared Financials" means the balance sheets of Borrower as of the date set
forth in the Schedule, and as of each subsequent date on which audited balance
sheets are delivered to GFC from time to time hereunder, and the related
statements of operations, changes in stockholder's equity and changes in cash
flow for the periods ended on such dates.
"Prohibited Transaction" means any transaction described in Section 406 of
ERISA which is not exempt by reason of Section 408 of ERISA, and any
transaction described in Section 4975(c) of the IRC which is not exempt by
reason of Section 4975(c)(2) of the IRC.
"Qualified Inventory" means Eligible Inventory (calculated at the lower cost or
market value, taking into account any manufacturer's notice to Borrower of
price reductions, and determined on a first-in, first-out basis) that (i) has
been purchased from manufacturers approved by GFC in its sole discretion, (ii)
has been in Borrower's possession for not more than ninety (90) days; (iii) is
not pending return subject to an issued return merchandise authorization; and
(iv) meets such other specifications and requirements (including manufacturer
concentration limits) that may from time to time be established by GFC.
"Receivable Loans" has the meaning set forth on the Schedule.
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"Receivables" means all of Borrower's now owned and hereafter acquired accounts
(whether or not earned by performance), proceeds of any letters of credit
naming Borrower as beneficiary, contract rights, chattel paper, instruments,
documents and all other forms of obligations at any time owing to Borrower, all
guaranties and other security therefor, whether secured or unsecured, all
merchandise returned to or repossessed by Borrower, and all rights of stoppage
in transit and all other rights or remedies of an unpaid vendor, lienor or
secured party.
"Renewal Term" has the meaning set forth on the Schedule.
"Reportable Event" means a reportable event described in Section 4043 of ERISA
or the regulations thereunder, a withdrawal from a Plan described in Section
4063 of ERISA, or a cessation of operations described in Section 4068(f) of
ERISA.
"Subordinated Debt" means liabilities of Borrower the repayment of which is
subordinated to the payment and performance of the Obligations.
"Tangible Capital Funds" at any date means an amount equal to (i) the sum of
the amounts at which Borrower's cash, Receivables, Inventory (calculated at the
lower of cost or market and determined on a first-in, first-out basis), net
fixed assets and the current portion of deferred tax assets would be shown on a
balance sheet of Borrower at such date prepared in accordance with generally
accepted accounting principles, provided that amounts due from Affiliates shall
be excluded therefrom, minus (ii) Current Liabilities of Borrower at such date
(excluding Subordinated Debt of Borrower).
"Total Facility" has the meaning set forth on the Schedule.
18.2 Other Terms. All accounting terms used in this Agreement, unless
otherwise indicated, shall have the meanings given to such terms in accordance
with generally accepted accounting principles, consistently applied. All other
terms contained in this Agreement, unless otherwise indicated, shall have the
meanings provided by the Code, to the extent such terms are defined therein.
19. MISCELLANEOUS.
19.1 Recourse to Security; Certain Waivers. All Obligations shall be payable
by Borrower as provided for herein and, in full, at the termination of this
Agreement; recourse to security shall not be required at any time. Borrower
waives presentment and protest of any instrument and notice thereof.
19.2 No Waiver by GFC. Neither GFC's failure to exercise any right, remedy or
option under this Agreement, any supplement, the Loan Documents or other
agreement between GFC and Borrower nor any delay by GFC in exercising the same
shall operate as a waiver. No waiver by GFC shall be effective unless in
writing and then only to the extent stated. No waiver by GFC shall affect its
right to require strict performance of this Agreement. GFC's rights and
remedies shall be cumulative and not exclusive.
19.3 Binding on Successor and Assigns. All terms, conditions, promises,
covenants, provisions and warranties shall inure to the benefit of and bind
GFC's and Borrower's respective representatives, successors and assigns.
19.4 Severability. If any provision of this Agreement shall be prohibited or
invalid under applicable law, it shall be ineffective only to such extent,
without invalidating the remainder of this Agreement.
19.5 Amendments; Assignments. This Agreement may not be modified, altered or
amended, except by an agreement in writing signed by Borrower and GFC; provided
that Exhibit A to this Agreement may be amended in whole or in part by GFC in
its sole discretion as provided in Section 7.1 of this Agreement. Borrower may
not sell, assign or transfer any interest in this Agreement or any other Loan
Document, or any portion thereof, including, without limitation, any of
Borrower's rights, title, interests, remedies, powers and duties hereunder or
thereunder. Borrower hereby consents to GFC's participation, sale, assignment,
transfer or other disposition, at any time or times hereafter, of this
Agreement and any of the other Loan Documents, or of any portion hereof or
thereof, including, without limitation, GFC's rights, title, interests,
remedies, powers and duties hereunder or thereunder. In connection therewith,
GFC may disclose all documents and information which GFC now or hereafter may
have relating to Borrower or Borrower's business, provided that each such
participant receiving such information shall agree to maintain the
confidentiality thereof pursuant to a confidentiality
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agreement reasonably acceptable to Borrower and GFC. To the extent that GFC
assigns its rights and obligations hereunder to a third party, GFC shall
thereafter be released from such assigned obligations to Borrower and such
assignment shall effect a novation between Borrower and such third party.
19.6 Integration. This Agreement, together with the Schedule (which is a part
hereof) and the other Loan Documents, reflect the entire understanding of the
parties with respect to the transactions contemplated hereby.
19.7 Governing Law; Waivers. THIS AGREEMENT SHALL BE INTERPRETED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE CONFLICT OF LAWS RULES) OF THE STATE OF
ARIZONA GOVERNING CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
BORROWER HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN THE COUNTY OF MARICOPA, THE STATE OF ARIZONA OR, AT THE
SOLE OPTION OF GFC, IN ANY OTHER COURT IN WHICH GFC SHALL INITIATE LEGAL OR
EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER
IN CONTROVERSY. BORROWER WAIVES ANY OBJECTION OF FORUM NON CONVENIENS AND
VENUE. BORROWER WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND
CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE IN THE MANNER SET FORTH IN
SECTION 19.13 HEREOF FOR THE GIVING OF NOTICE. BORROWER FURTHER WAIVES ANY
RIGHT IT MAY OTHERWISE HAVE TO COLLATERALLY ATTACK ANY JUDGMENT ENTERED AGAINST
IT.
19.8 Survival. All of the representations and warranties of Borrower
contained in this Agreement shall survive the execution, delivery and
acceptance of this Agreement by the parties. No termination of this Agreement
or of any guaranty of the Obligations shall affect or impair the powers,
obligations, duties, rights, representations, warranties or liabilities of the
parties hereto and all shall survive any such termination.
19.9 Evidence of Obligations. Each Obligation may, in GFC's discretion, be
evidenced by notes or other instruments issued or made by Borrower to GFC. If
not so evidenced, such Obligation shall be evidenced solely by entries upon
GFC's books and records.
19.10 Collateral Security. The Obligations shall constitute one loan secured
by the Collateral. GFC may, in its sole discretion, (i) exchange, enforce,
waive or release any of the Collateral, (ii) apply Collateral and direct the
order or manner of sale thereof as it may determine, and (iii) settle,
compromise, collect or otherwise liquidate any Collateral in any manner without
affecting its right to take any other action with respect to any other
Collateral.
19.11 Application of Collateral. GFC shall have the continuing and exclusive
right to apply or reverse and re-apply any and all payments to any portion of
the Obligations. To the extent that Borrower makes a payment or GFC receives
any payment or proceeds of the Collateral for Borrower's benefit which is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, debtor in possession, receiver or any
other party under any bankruptcy law, common law or equitable cause, then, to
such extent, the Obligations or part thereof intended to be satisfied shall be
revived and continue as if such payment or proceeds had not been received by
GFC.
19.12 Loan Requests. Each oral or written request for a loan by any Person
who purports to be any employee, officer or authorized agent of Borrower shall
be made to GFC on or prior to 5:00 p.m., Pennsylvania time, on the Business Day
immediately preceding the Business Day on which the proceeds thereof are
requested to be paid to Borrower and shall be conclusively presumed to be made
by a Person authorized by Borrower to do so and the crediting of a loan to
Borrower's operating account shall conclusively establish Borrower's obligation
to repay such loan. Unless and until Borrower otherwise directs GFC in writing
or unless otherwise provided in this Agreement, all loans shall be wired to
Borrower's operating account set forth on the Schedule.
19.13 Notices. Any notice required hereunder shall be in writing and
addressed to the Borrower and GFC at their addresses set forth at the beginning
of this Agreement. Notices hereunder shall be deemed received on the earlier
of receipt, whether by mail, personal delivery, facsimile, or otherwise, or
upon deposit in the United States mail, postage prepaid.
19.14 Brokerage Fees. Borrower represents and warrants to GFC that, with
respect to the financing transaction herein contemplated, no Person is entitled
to
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any brokerage fee or other commission and Borrower agrees to indemnify and hold
GFC harmless against any and all such claims.
19.15 Disclosure. No representation or warranty made by Borrower in this
Agreement, or in any financial statement, report, certificate or any other
document furnished in connection herewith contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements herein or therein not misleading. There is no fact known to
Borrower or which reasonably should be known to Borrower which Borrower has not
disclosed to GFC in writing with respect to the transactions contemplated by
this Agreement which materially and adversely affects the business, assets,
operations, prospects or condition (financial or otherwise), of Borrower.
19.16 Publicity. GFC is hereby authorized to issue appropriate press releases
and to cause a tombstone to be published announcing the consummation of this
transaction and the aggregate amount thereof.
19.17 Captions. The Section titles contained in this Agreement are without
substantive meaning and are not part of this Agreement.
19.18 Injunctive Relief. Borrower recognizes that, in the event Borrower fails
to perform, observe or discharge any of its Obligations under this Agreement,
any remedy at law may prove to be inadequate relief to GFC. Therefore, GFC, if
it so requests, shall be entitled to temporary and permanent injunctive relief
in any such case without the necessity of proving actual damages.
19.19 Counterparts. This Agreement may be executed in one or more
counterparts, each of which taken together shall constitute one and the same
instrument.
19.20 Construction. The parties acknowledge that each party and its counsel
have reviewed this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement or any amendments or
exhibits hereto.
19.21 Time of Essence. Time is of the essence for the performance by Borrower
of the Obligations set forth in this Agreement.
19.22 Limitation of Actions. Borrower agrees that any claim or cause of action
by Borrower against GFC, or any of GFC's directors, officers, employees,
agents, accountants or attorneys, based upon, arising from, or relating to this
Agreement, or any other present or future agreement, or any other transaction
contemplated hereby or thereby or relating hereto or thereto, or any other
matter, cause or thing whatsoever, whether or not relating hereto or thereto,
occurred, done, omitted or suffered to be done by GFC, or by GFC's directors,
officers, employees, agents, accountants or attorneys, whether sounding in
contract or in tort or otherwise, shall be barred unless asserted by Borrower
by the commencement of an action or proceeding in a court of competent
jurisdiction by the filing of a complaint within one year after the first act,
occurrence or omission upon which such claim or cause of action, or any part
thereof, is based and service of a summons and complaint on an officer of GFC
or any other person authorized to accept service of process on behalf of GFC,
within 30 days thereafter. Borrower agrees that such one-year period of time
is a reasonable and sufficient time for Borrower to investigate and act upon
any such claim or cause of action. The one-year period provided herein shall
not be waived, tolled, or extended except by a specific written agreement of
GFC. This provision shall survive any termination of this Loan Agreement or
any other agreement.
19.23 Liability. Neither GFC nor any GFC Affiliate shall be liable for any
indirect, special, incidental or consequential damages in connection with any
breach of contract, tort or other wrong relating to this Agreement or the
Obligations or the establishment, administration or collection thereof
(including without limitation damages for loss of profits, business
interruption, or the like), whether such damages are foreseeable or
unforeseeable, even if GFC has been advised of the possibility of such damages.
Neither GFC, nor any GFC Affiliate shall be liable for any claims, demands,
losses or damages, of any kind whatsoever, made, claimed, incurred or suffered
by the Borrower through the ordinary negligence of GFC, or any GFC Affiliate.
"GFC Affiliate" shall mean GFC's directors, officers, employees, agents,
attorneys or other person or entity affiliated with or representing GFC.
19.24 Notice of Breach by GFC. Borrower agrees to give GFC written notice of
(i) any action or inaction by GFC or any attorney of GFC in connection with any
Loan Documents that may be actionable against GFC or any attorney of GFC or
(ii) any defense to the payment of the Obligations for any reason, including,
but not limited to, commission of a tort or violation of any
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contractual duty or duty implied by law. Borrower agrees that unless such
notice is fully given as promptly as possible (and in any event within thirty
(30) days) after Borrower has knowledge, or with the exercise of reasonable
diligence should have had knowledge, of any such action, inaction or defense.
Borrower shall not assert, and Borrower shall be deemed to have waived, any
claim or defense arising therefrom.
19.25 MUTUAL WAIVER OR RIGHT TO JURY TRIAL. GFC AND BORROWER EACH HEREBY
WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON,
ARISING OUT OF, OR IN ANY WAY RELATING TO: (i) THIS AGREEMENT; (ii) ANY OTHER
PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN GFC AND BORROWER; OR (iii)
ANY CONDUCT, ACTS OR OMISSIONS OF GFC OR BORROWER OR ANY OR THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH GFC
OR BORROWER; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE.
Borrower:
PROCOM TECHNOLOGY, INC.
By___________________________________
Title________________________________
By___________________________________
Secretary or Ass't Secretary
GFC:
GREYHOUND FINANCIAL CORPORATION
By___________________________________
Title________________________________
22
23
GFC
SCHEDULE TO
LOAN AND SECURITY AGREEMENT
BORROWER: PROCOM TECHNOLOGY, INC.
ADDRESS: 0000 XXXXXX XXXXX
XXXXXX, XXXXXXXXXX 00000
DATE: NOVEMBER 18, 1994
This Schedule forms an integral part of the Loan and Security Agreement between
the above Borrower and Greyhound Financial Corporation dated the above date,
and all references herein and therein to "this Agreement" shall be deemed to
refer to said Agreement and to this Schedule.
TOTAL FACILITY (SECTION 1.1):
$9,000,000.00 (the "Total Facility")
LOANS (SECTION 1.2):
A. REVOLVING LOANS: a revolving line of credit ("Revolving Credit
Line") consisting of loans against Borrower's Eligible Receivables ("Receivable
Loans") and against Borrower's Eligible Inventory other than Floorplanned
Inventory ("Inventory Loans") in an aggregate outstanding principal amount not
to exceed at any time the lesser of:
(a) Four Million Dollars ($4,000,000.00) (the "Maximum
Revolving Facility Amount"), or
S-1
24
(b) the sum of
(i) an amount equal to seventy-five percent (75%) of
the net amount of Eligible Receivables; plus
(ii) an amount equal to the sum of: (A) fifty percent
(50%) of the value of Borrower's Eligible Inventory, minus (B) the value
of Borrower's Floorplanned Inventory, in each case calculated at the
lower of cost or market value and determined on a first-in, first-out
basis.
B. FLOORPLAN LOANS: a floorplan line of credit consisting of loans
against Borrower's Floorplanned Inventory ("Floorplan Loans") in an aggregate
outstanding principal amount not to exceed at any time the lesser of:
(a) Five Million Dollars ($5,000,000.00), or
(b) the sum of the amount of (i) Borrower's Qualified
Inventory and (ii) all original credit memoranda held by GFC and received from
manufacturers of Qualified Inventory.
CONDITIONS PRECEDENT (SECTION 2.1):
The obligation of GFC to make the initial advance hereunder is subject
to the fulfillment, to the satisfaction of GFC and its counsel, of the
condition, in addition to the conditions set forth in Sections 2.1 and 2.2
above, that there shall have been no material adverse change in the business,
operations, profits or prospects of Borrower, or in the condition of the assets
of Borrower, between August 31, 1994 and the date hereof. Borrower shall cause
the conditions precedent set forth in Section 2.1 of this Agreement and set
forth above in this Schedule to be satisfied on or before November 18, 1994.
INTERESTS AND FEES (SECTION 3.1):
Interest. Borrower shall pay GFC interest on the daily outstanding
balance of Borrower's loan account at a per annum rate of one and one-half
percent (1.50%) in excess of the highest rate of interest published from time
to time in the "Money Rates" section of The Wall Street Journal under "Prime
Rate" or, if such rate is not so published from time to time, the rate of
interest announced publicly by Citibank, N.A., from time to time as its "base
rate" (or any successor thereto), which, in either case, may not be such
institution's or GFC's lowest rate (the "Base Rate"); provided, however, that
(i) if, during any full calendar quarter during the term of this Agreement (or
other period specified below), volume under the Floorplan Credit Line (as
measured by the total of the face amounts of invoices funded by GFC under the
Floorplan Credit Line during such period) is less than Four Million Dollars
($4,000,000.00) (such amount
S-2
25
to be prorated for the initial and final calendar quarters of the term, as
applicable) and provided that the failure to meet the minimum of $4,000,000 was
not due to a termination of the Floorplan Credit Line by GFC or GFC's refusal to
make Floorplan Loans (unless due to an Event of Default), the interest rate
applicable to Borrower's loan account for such quarter (or such other period
specified above) shall be retroactively increased to a per annum rate equal to
three and three quarters percent (3.75%) in excess of the Base Rate (with any
adjustment amount to be immediately due upon demand by GFC and (ii) interest
shall not be payable by Borrower with respect to Floorplan Loans reflected in
Borrower's loan account except as provided in Section 3.2 of this Agreement. The
interest rate chargeable hereunder shall be increased or decreased, as the case
may be, without notice of demand of any kind, upon the publishing or
announcement, as the case may be, of any change in the Base Rate. Each change
in the Base Rate shall be effective hereunder on the first day following the
publishing or announcement, as the case may be, of such change, provided, that a
cumulative change of less than one-quarter of one percent (0.25%) shall not be
considered. Interest charges and all other fees and charges herein shall be
computed on the basis of a year of 360 days and actual days elapsed and shall be
payable to GFC in arrears on the first day of each month.
Closing Fee. At the closing of this transaction, Borrower shall pay to
GFC a closing fee in an amount equal to Forty Thousand Dollars ($40,000.00),
which shall be deemed fully earned at the time of payment.
Facility Fee. Borrower shall pay to GFC a facility fee equal to
one-half of one percent (0.50%) per annum on the daily average unused amount of
the Maximum Revolving Facility Amount. The facility fee shall be deemed fully
earned at the time when due and is otherwise due and payable in arrears on the
first day of each month, commencing on the first such day after the date of
this Agreement, on the first day of each subsequent month thereafter and on the
date on which this Agreement is terminated.
Examination Fees. Borrower agrees to pay to GFC an examination fee in
the amount of Four Hundred Dollars ($400.00) per person per day in connection
with each audit or examination of Borrower performed by GFC prior to or after
the date hereof. The initial examination fee payable under this Agreement
shall be deemed fully earned at the time of payment and due and payable upon
the closing of this transaction, and shall be deducted from any good faith
deposit paid by Borrower to GFC prior to the date of this Agreement.
REPORTING REQUIREMENTS (SECTION 5.2):
1. Borrower shall provide GFC with monthly agings aged by invoice date and
reconciliations of Receivables within ten (10) days after the end of each
month.
2. Borrower shall provide GFC with monthly accounts payable agings aged by
invoice date, outstanding or held check registers and inventory certificates
within ten (10) days after the end of each month.
S-3
26
3. Borrower shall provide GFC with weekly perpetual inventory reports for
the Inventory (as well as separate inventory reports as to Floorplanned
Inventory) valued on a first-in, first-out basis at the lower of cost or market
(in accordance with generally accepted accounting principles) or such other
inventory reports as are reasonably requested by GFC, all by Wednesday of each
week with respect to reports for the immediately preceding week.
4. Borrower shall provide GFC with monthly unaudited financial statements
within thirty (30) days after the end of each month.
5. Borrower shall provide GFC with annual operating budgets (including
income statements, balance sheets and cash flow statements, by month) for the
upcoming fiscal year of Borrower by the end of each fiscal year of Borrower.
BORROWER INFORMATION:
Borrower's State of Incorporation (Section 12.1): California
Fictitious Names/Prior Corporate Names (Section 12.2): None
Borrower Locations (Section 12.16): 0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Permitted Encumbrances (Section 18.1): None
FINANCIAL COVENANTS (SECTION 13.14):
Borrower shall comply with all of the following covenants. Compliance
shall be determined as of the end of each fiscal quarter of Borrower, except as
otherwise specifically provided below:
Working Capital. Borrower shall maintain Minimum Working Capital of not
less than Five Hundred Thousand Dollars ($500,000.00);
Tangible Capital Funds. Borrower shall maintain Tangible Capital Funds of not
less than One Million Dollars ($1,000,000.00); and
Debt to Tangible Borrower shall maintain a ratio of Indebtedness
Capital Funds. (excluding Subordinated Debt) to Tangible Capital Funds
of not greater than 5.0 to 1.0.
X-0
00
XXXXXXXX XXXXXXXXX (SECTION 14):
Compensation: Borrower may pay salaries during any fiscal year to all of
Borrower's executives, officers and directors (or any relative
thereof) in an amount not to exceed 110% of the amount paid to
all such Persons during the immediately preceding fiscal year of
Borrower; and
Borrower may pay additional compensation ("Compensation")
including, without limitation, withdrawals, fees, bonuses,
commissions, drawing accounts and other payments, whether
directly or indirectly, in money or otherwise during any fiscal
year to all of Borrower's executives, officers and directors (or
any relative thereof), provided no Event of Default has
occurred, and only to the extent that the total fiscal
year-to-date Compensation to such Persons will not exceed 50% of
Borrower's year-to-date net profits as determined by generally
accepted accounting principals. Said additional Compensation
may be paid semiannually, but only after Borrower has issued its
unaudited financials for the first six months of the fiscal year
or its year end financials, as applicable.
TERM (SECTION 16.1):
The initial term of this Agreement shall be two (2) years from the date
hereof (the "Initial Term") and shall be automatically renewed for successive
periods of one (1) year each (each, a "Renewal Term"), unless earlier
terminated as provided in Section 16 or 17 above or elsewhere in this Agreement.
TERMINATION FEE (SECTION 16.4):
The Termination Fee provided in Section 16.4 shall be an amount equal
to the following percentage of (a) the Total Facility, if both the Revolving
Credit Line and the Floorplan Credit Line are terminated, or (b) the Maximum
Revolving Facility Amount, if (with GFC's consent) the Revolving Credit Line is
terminated singly and the Floorplan Credit Line remains in effect:
(i) seven-tenths of one percent (0.7%), if such early termination
occurs on or prior to the first anniversary of this Agreement;
(ii) four-tenths of one percent (0.4%), if such early termination
occurs after the first anniversary of this Agreement.
S-5
28
ADDITIONAL DEFINITIONS (Section 18.1):
"Prepared Financials" means the balance sheets of Borrower as of August 31,
1994, and as of each subsequent date on which audited
balance sheets are delivered to GFC from time to time
hereunder, and the related statements of operations,
changes in stockholder's equity and changes in cash flow
for the periods ended on such dates.
"Guarantors" means each of Xxxx Xxxx'xxx, Xxxx Aydim, Xxxxx
Xxxxxxxxx, Nick Shahrestang and each such Person's
respective spouse.
DISBURSEMENT (Section 19.12):
Unless and until Borrower otherwise directs GFC in writing, all loans
(other than Floorplan Loans disbursed directly to manufacturers of Floorplanned
Inventory as contemplated in Section 1.4 of this Agreement) shall be wired to
Borrower's following operating account: SANWA BANK ACCOUNT NO. 0896-23013.
Borrower: GFC:
PROCOM TECHNOLOGY, INC. GREYHOUND FINANCIAL CORPORATION
By [SIG] By [SIG]
-------------------------------- --------------------------------
Title EVP Title VP
----------------------------- -----------------------------
By [SIG]
--------------------------------
Secretary or Ass't Secretary
S-6
29
EXHIBIT A TO
LOAN AND SECURITY AGREEMENT
BORROWER: PROCOM TECHNOLOGY, INC.
ADDRESS: 0000 XXXXXX XXXXX
XXXXXX, XXXXXXXXXX 00000
DATE: NOVEMBER 18, 1994
This Schedule forms an integral part of the Loan and Security Agreement between
the above Borrower and Greyhound Financial Corporation dated the above date.
FLOORPLAN LOAN PRINCIPAL PAYMENT DATES: (SECTION 7.1):
Number of Days
After Invoice Date
that Principal is
Manufacturer Repayable by Borrower
------------ ---------------------
NEC 45
Toshiba 45
Xxxxxx Peripherals 45
CPC 45
Seagate 45
Sony 60
Fujitsu 60
30
ADDENDUM
This Addendum references and amends that certain Loan and Security
Agreement dated as of November 18, 1994 (the "Agreement") by and between
Greyhound Financial Corporation ("GFC") and Procom Technology, Inc.
("Borrower").
1. Overlines. Section 1.3 of the Agreement is hereby deleted and
the following is substituted therefor:
1.3 Overlines. If at any time or for any reason (i) the outstanding amount
of advances made pursuant hereto exceeds any of the dollar or percentage
limitations contained in the Schedule or (ii) the outstanding amount of
advances under the Floorplan Credit Line exceeds the amount available under
the "Inventory True-up Schedule" (any such excess, an "Overline"), then
Borrower shall, upon GFC's demand, immediately pay to GFC, in cash, the full
amount of such Overline. The Inventory True-up Schedule shall be
substantially in the form attached hereto as Exhibit A, containing such
information as GFC deems necessary or appropriate, and shall be delivered
weekly by Borrower to Lender. Without limiting Borrower's obligation to repay
to GFC on demand the amount of any Overline, Borrower agrees to pay GFC
interest on the outstanding principal amount of any Overline, on demand, at
the rate set forth on the Schedule.
Exhibit A to this Addendum is hereby incorporated as Exhibit A to the Agreement.
In all other respects, Section 1.3 remains in full force and effect.
Notwithstanding the foregoing, if by December 28, 1994, Xxxxx Xxxxxxx delivers
her guaranty in the form executed by the other guarantors, the Adjustment on
Exhibit A hereto will be changed from $250,000 to $500,000 as of the date of
GFC's receipt of such guaranty.
31
2. Definition of Inventory Loans. Subparagraph (b)(ii) of the Revolving
Loans calculation set forth in the Schedule to the Agreement is hereby deleted
and the following is substituted therefor:
(ii) an amount equal to 50% of the sum of (A) the value of Borrower's
Eligible Inventory, calculated at the lower of cost or market value and
determined on a first-in, first-out basis, minus (B) the aggregate
outstanding balance of Floorplan Loans.
3. 60-Day Flooring Invoice Option. GFC and Borrower agree that
Borrower may pay Floor Plan Loans for Seagate purchases floor planned by GFC
("Seagate/GFC Invoices") at any time prior to 50 days after the date of invoice
without an interest charge. Borrower may pay Seagate/GFC Invoices after 50 days,
but before 60 days, after the date of invoice with an interest charge of .34% of
the amount of the unpaid Seagate/GFC Invoice. This rate will be charged as it
accrues. The .34% rate shall be increased or decreased by .1% for every .25%
increase or decrease in the Base Rate from the current rate of 8.5%. On or after
60 days, the unpaid Seagate/GFC Invoices will be subject to the interest rate
set forth in Section 3.2 of the Agreement (6% in excess of the Base Rate).
4. Closing Fee. The Closing Fee of $40,000 as set forth in the
Schedule to the Agreement is hereby changed to $50,000. Notwithstanding the
foregoing, if both Xxxxx Xxxxxxx and Xxxxxxxxxx Xxxxxxxxx deliver either their
guaranty or Spousal Waiver in forms presented previously by GFC, and
2
32
such documents are received by December 28, 1994, the Closing Fee will be
reduced to $40,000 and the $10,000 difference will be returned to Borrower.
5. Current Seagate Account Payable. Borrower agrees to pay its
indebtedness to Seagate and cause Seagate to terminate its security interest in
Borrower's assets within 60 days from the date hereof.
6. Incorporation. The terms and covenants herein are hereby
incorporated in the Agreement.
This Addendum has been executed by the parties hereto as of November 18,
1994.
GREYHOUND FINANCIAL CORPORATION
By ___________________________________
Its __________________________________
PROCOM TECHNOLOGY, INC.
By /s/ [ILLEGIBLE]
------------------------------------
Its Senior Vice President
-----------------------------------
3
33
EXHIBIT A
Floorplan Inventory True-up Schedule
to Loan and Security Agreement between
Greyhound Financial Corporation and Procom Technology, Inc.
dated as of November 18, 1994 (the "Agreement")
All capitalized terms used in this Exhibit A and not otherwise defined
herein shall have the meanings given them in the Agreement.
AMOUNT
------
I. Value of Eligible Inventory $_________
plus
II. Adjustment $25,000.00
minus
III. Inventory Loan availability
under Revolving Loans $_________
IV. TOTAL AMOUNT OF "TRUE-UP INVENTORY"
(I plus II minus III) $_________
V. AGGREGATE OUTSTANDING BALANCE
OF FLOORPLAN LOANS UNDER AGREEMENT $_________
If the amount set forth in Item V exceeds the amount set forth in Item
IV, Borrower shall pay the difference to Lender in accordance with the terms of
Section 1.3 of the Agreement.
Date:________________________
PROCOM TECHNOLOGY, INC.
By:__________________________
Its:_________________________
4
34
TRANSACTION REPORT AND LOAN REQUEST
Certificate
TO: GREYHOUND FINANCIAL CORPORATION No. 107
1060 First Avenue ------------
King of Xxxxxxx, XX 00000 Date: 11/28/94
------------
The Undersigned hereby certifies the following:
-------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
COMPUTATION OF ACCOUNTS RECEIVABLE A B
COLLATERAL ACCTS RECEIVABLE (INVENTORY) COMBINED
-----------------------------------------------------------------------------------------------------------------------
1. Collateral Balance per Previous Report $5,715,161.15 $3,316,046.09 $9,031,207.24
-----------------------------------------------------------------------------------------------------------------------
2. Add: New A/R Assigned Sales Orders / (Purchases) $154,504.53 $41,037.40 $195,541.93
-----------------------------------------------------------------------------------------------------------------------
3. Less: Credit Memos / (Other Inv. Issues) ($28,128.00) ($2,417.47) ($30,545.47)
-----------------------------------------------------------------------------------------------------------------------
4. Less: A/R Collections / (Shipments) ($283,760.17) ($78,582.18) ($362,342.35)
-----------------------------------------------------------------------------------------------------------------------
5. Adjustments - Increase or (Decrease) $0.00
-----------------------------------------------------------------------------------------------------------------------
6. New Balance: A/R / (Inventory) $5,557,777.51 $3,276,083.84 $8,833,861.35
-----------------------------------------------------------------------------------------------------------------------
7. Less: Ineligible: A/R / (Inventory (WHS 3-999)) 148140 ($1,821,119.00) ($898,054.85) ($2,719,173.85)
-----------------------------------------------------------------------------------------------------------------------
8. Less: Floor Plan Liability ($1,250,000.00) ($1,250,000.00)
-----------------------------------------------------------------------------------------------------------------------
9. Total Eligible: Receivables / (Inventory) $3,736,658.51 $1,128,028.99 $4,864,687.50
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
10. Accounts Receivable: Total Eligible Receivables
from Line A9 above @ 75% $2,802,493.88 $2,802,493.88
-----------------------------------------------------------------------------------------------------------------------
11. Accounts Receivable: Total Eligible Inventory
from Line B9 above @ 50% $564,014.50 $564,014.50
-----------------------------------------------------------------------------------------------------------------------
12. Less L.C. Balance $0.00 $0.00
-------------------------------------------------------------------------------- -------------------
13. Net Availability (Line 9 plus Line 10 less Line 11)
not to exceed $4,000,000.00 $3,366,508.38
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
COMPUTATION OF LOAN
-----------------------------------------------------------------------------------------------------------------------
14. Loan Balance per pervious report $1,690.041.81
------------------------------------------------------------ -------------------
15. PAYDOWN (Sanwa wire to GFC) ($732,643.80)
------------------------------------------------------------ -------------------
16. Adjustments - Increase or (Decrease)
------------------------------------------------------------ -------------------
17. Adjusted Loan Balance
(Line 14 plus/(less) Line 16) $957,398.01
------------------------------------------------------------ -------------------
18. Availability Before Loan Request
(Line 13 less Line 17) $2,409,110.37
------------------------------------------------------------ -------------------
19. The undersigned requests a loan in the amount of
------------------------------------------------------------ -------------------
20. New Loan Balance (Line 17 plus Line 19) $957,398.01
-----------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
The above collateral is subject to a security interest in favor of GREYHOUND
FINANCIAL CORP. pursuant to the Accounts Receivable Credit Agreement (the
"Agreement") executed between the Financer and the undersigned.
$_____________________________ has been deposited to your account pursuant to
the request set forth above.
-------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
GREYHOUND FINANCIAL CORP. BORROWER
-----------------------------------------------------------------------------------------------------------------------
Office KING OF PRUSSIA Date PROCOM TECHNOLOGY, INC.
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
35
CONTINUING PERSONAL GUARANTY
FOR VALUE RECEIVED, and in consideration of any loan or other financial
accommodation heretofore or hereafter at any time made or granted to PROCOM
TECHNOLOGY, INC., a California corporation ("Borrower") by GREYHOUND FINANCIAL
CORPORATION ("Lender"), the undersigned, Xxxxxxx Xxxxxxxxx ("Guarantor"),
hereby agrees as follows:
1. Guaranty of Obligations. Guarantor unconditionally, absolutely
and irrevocably guarantees the full and prompt payment and performance when
due, whether by acceleration or otherwise, and at all times thereafter, of all
obligations of Borrower to Lender, howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, or now or hereafter
existing or due or to become due, including, without limitation, under or in
connection with that certain Loan and Security Agreement of even date, between
Borrower and Lender (the "Loan Agreement") and each of the documents,
instruments and agreements executed and delivered in connection therewith, as
each may be modified, amended, supplemented or replaced from time to time (all
such obligations are herein referred to collectively as the "Liabilities", and
all documents evidencing or securing any of the Liabilities are herein referred
to, collectively, as the "Loan Documents"). This Continuing Personal Guaranty
(this "Continuing Guaranty") is a guaranty of payment and performance when due
and not of collection.
In the event of any default by Borrower in making payment of, or
default by Borrower in performance of, any of the Liabilities, Guarantor agrees
on demand by Lender to pay and perform all of the Liabilities as are then or
thereafter become due and owing or are to be performed under the terms of the
Loan Documents. Guarantor further agrees to pay all expenses (including
reasonable attorneys' fees and expenses) paid or incurred by Lender in
endeavoring to collect the Liabilities, or any part thereof, and in enforcing
this Continuing Guaranty.
2. Continuing Nature of Guaranty and Liabilities. This Continuing
Guaranty shall be continuing and shall not be discharged, impaired or affected
by:
a. the insolvency of Guarantor or the payment in full of
all of the Liabilities at any time or from time to time;
b. the power or authority or lack thereof of Borrower to
incur the Liabilities;
c. the validity or invalidity of any of the Loan Documents
or the documents securing the same;
d. the existence or non-existence of Borrower as a legal
entity;
36
e. any transfer by Borrower of all or any part of
any collateral in which Lender has been granted a lien or security
interest pursuant to the Loan Documents;
f. any statute of limitations affecting the
liability of Guarantor under this Continuing Guaranty or the Loan
Documents or the ability of Lender to enforce this Continuing Guaranty
or any provision of the Loan Documents or the Security Documents; or
g. any right of offset, counterclaim or defense of
Guarantor, including, without limitation, those which have been waived
by Guarantor pursuant to Paragraph 6 hereof.
3. Insolvency of Borrower or Guarantor. Without limiting
the generality of any other provision hereof, Guarantor agrees that, in the
event of the dissolution or insolvency of Borrower or Guarantor or the inability
of Borrower or Guarantor to pay their respective debts as they mature, or an
assignment by Borrower or Guarantor for the benefit of creditors, or the
institution of any proceeding by or against Borrower or Guarantor alleging that
Borrower or Guarantor is insolvent or unable to pay their respective debts as
they mature, Guarantor will pay to Lender forthwith the full amount which would
be payable hereunder by Guarantor if all of the Liabilities were then due and
payable, whether or not such event occurs at a time when any of the Liabilities
are otherwise due and payable.
4. Payment of the Liabilities. Any amounts received by
Lender from whatever source on account of the Liabilities may be applied by
Lender toward the payment of such of the Liabilities, and in such order of
application, as Lender may from time to time elect, and notwithstanding any
payments made by or for the account of Guarantor pursuant to this Continuing
Guaranty.
Guarantor agrees that, if at any time all or any part of any
payment theretofore applied by Lender to any of the Liabilities is or must be
rescinded or returned by Lender for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of Borrower), such
Liabilities shall, for the purposes of this continuing Guaranty and to the
extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence notwithstanding such application by Lender, and this
Continuing Guaranty shall continue to be effective or be reinstated, as the
case may be, as to such Liabilities, all as though such application by Lender
had not been made.
5. Permitted Actions of Lender. Lender may from time to
time, in its sole discretion and without notice to Guarantor, take any or all of
the following actions:
a. retain or obtain a security interest in any
assets of Borrower or any third party to secure any of the Liabilities
or any obligations of Guarantor hereunder;
2
37
b. retain or obtain the primary or secondary
obligation of any obligor or obligors, in addition to Guarantor, with
respect to any of the Liabilities;
c. extend or renew for one or more periods (whether
or not longer than the original period), alter or exchange any of the
Liabilities;
d. waive, ignore or forbear from taking action or
otherwise exercising any of its default rights or remedies with respect
to any default by Borrower under the Loan Documents;
e. release, waive or compromise any obligation of
Guarantor hereunder or any obligation of any nature of any other obligor
primarily or secondarily obligated with respect to any of the
Liabilities;
f. release its security interest in, or surrender,
release or permit any substitution or exchange for, all or any part of
any collateral now or hereafter securing any of the Liabilities or any
obligation hereunder, or extend or renew for one or more periods
(whether or not longer than the original period) or release, waive,
compromise, alter or exchange any obligations of any nature of any
obligor with respect to any such property; and
g. demand payment or performance of any of the
Liabilities from Guarantor at any time or from time to time, whether or
not Lender shall have exercised any of its rights or remedies with
respect to any property securing any of the Liabilities or any
obligation hereunder or proceeded against any other obligor primarily or
secondarily liable for payment or performance of any of the Liabilities.
6. Specific Waivers. Without limiting the generality of
any other provision of this Continuing Guaranty, Guarantor hereby expressly
waives:
a. notice of the acceptance by Lender of this
Continuing Guaranty;
b. notice of the existence, creation, payment,
nonpayment, performance or nonperformance of all or any of the
Liabilities;
c. presentment, demand, notice of dishonor,
protest, notice of protest and all other notices whatsoever with respect
to the payment or performance of the Liabilities or the amount thereof
or any payment or performance by Guarantor hereunder;
d. all diligence in collection or protection of or
realization upon the Liabilities or any thereof, any obligation
hereunder or any security for or guaranty of any of the foregoing;
e. any right to direct or affect the manner or
timing of Lender's enforcement of its rights or remedies;
3
38
f. all rights and benefits under Section 2809 of the
California Civil Code purporting to reduce Guarantor's obligation in proportion
to the principal obligation hereby guaranteed, and any defense based on or
arising out of any defense the person or entity primarily liable may have to
payment or to performance of any covenants or obligations;
g. all rights and benefits under Section 2845 of the
California Civil Code which, among other things, permits a guarantor or surety
to require any creditor to pursue its debtor, any security which said creditor
may hold, or any other remedy before proceeding against Guarantor;
h. any defense, right of set-off or other claim whatsoever
(other than payment in full and performance in full of all of the Liabilities
after any termination of the Loan Agreement in accordance with the terms of the
Loan Documents) that Borrower or any third party may or might have to the
payment or performance of the Liabilities;
i. any and all defenses which would otherwise arise upon
the occurrence of any event or contingency described in Paragraph 1 hereof or
upon the taking of any action by Lender permitted hereunder;
j. any defense, right of set-off, claim or counterclaim
whatsoever (other than payment and performance in full of all of the Liabilities
after any termination of the Loan Agreement in accordance with the terms of the
Loan Documents), and any and all other rights, benefits, protections and other
defenses which Guarantor may have, now or at any time hereafter, to full payment
or performance of the Liabilities pursuant to the terms of this Continuing
Guaranty, including, without limitation, under California Civil Code Sections
2809, 2810, 2819, 2820, 2821, 2839, 2845, 2847, 2848, 2849, 2850 and 2855, and
California Code of Civil Procedure Sections 580a, 580b, and 580d, and all
successor sections; and
k. all other principles or provisions of law, if any, that
conflict with the terms of this Continuing Guaranty, including, without
limitation, the effect of any circumstances that may or might constitute a legal
or equitable discharge of a guarantor or surety.
7. Irrevocability. Guarantor hereby further waives all rights to
revoke this Continuing Guaranty at any time, and all rights to revoke any
agreement executed by Guarantor at any time to secure the payment and
performance of Guarantor's obligations under this Continuing Guaranty. Without
limiting the generality of this paragraph, Guarantor hereby specifically waives
the provisions of California Civil Code Section 2815, and any successor section,
with respect to this Continuing Guaranty and all security for the obligations of
Guarantor hereunder.
8. Waiver of Subrogation and Certain Other Rights. Guarantor
hereby waives and shall have no right of subrogation, reimbursement,
exoneration, contribution or
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39
indemnity against Borrower or any other guarantor for any reason, including but
not limited to, by reason of any payments made or acts performed by Guarantor in
compliance with the obligations of Guarantor hereunder or any actions taken by
Lender pursuant to this Continuing Guaranty or pursuant to the Loan Documents.
Without limiting the generality of the foregoing, Guarantor hereby
waives all rights and benefits under Section 580d of the California Code of
Civil Procedure stating that no deficiency may be recovered on an obligation
secured by a deed of trust on real property if the real property, or any part
thereof, subject to any deed of trust given by Borrower to secure all or any
part of the Liabilities is sold under a power of sale contained therein, and all
defenses based on any loss as a result of any such private sale of Guarantor's
right to recover any such amount from the person or entity primarily liable,
whether by right of subrogation or otherwise. GUARANTOR HEREBY ACKNOWLEDGES
THAT BUT FOR THE FOREGOING WAIVER AND OTHER WAIVERS CONTAINED HEREIN, THE LOSS
OF DEFICIENCY RIGHTS AGAINST BORROWER RESULTING FROM A PRIVATE SALE OF ANY REAL
PROPERTY UNDER SUCH A DEED OF TRUST COULD CREATE A DEFENSE TO PAYMENT BY
GUARANTOR HEREUNDER.
Guarantor agrees that nothing contained in this Continuing Guaranty
shall prevent Lender from suing to collect on the Liabilities or from exercising
concurrently or successively any rights available to it at law and/or in equity
or under any of the Loan Documents, and that the exercise of any of the
aforesaid rights shall not constitute a legal or equitable discharge of
Guarantor. Guarantor hereby authorizes and empowers Lender to exercise, in its
sole discretion, any rights and remedies, or any combination thereof, which may
then be available, since it is the intent and purpose of Guarantor that the
obligations hereunder shall be absolute, independent and unconditional under any
and all circumstances.
Notwithstanding any foreclosure of the lien of any deed of trust or
security agreement with respect to any or all of any real or personal property
secured thereby, whether by the exercise of the power of sale contained therein,
by an action for judicial foreclosure, or by the acceptance of a deed or
possession of any other collateral in lieu of foreclosure, Guarantor shall
remain bound under this Continuing Guaranty. Without limiting the generality of
the foregoing, Guarantor specifically agrees that upon an Event of Default under
and as defined in the Loan Agreement, Lender may elect to nonjudicially or
judicially foreclose against any real or personal property, or any part thereof,
subject to any deed of trust given by Borrower to secure all or any part of the
Liabilities, or exercise any other remedy against Borrower, any security for the
Liabilities or any other guarantor, even if the effect of that action is to
deprive Guarantor of the right to collect reimbursement from the applicable
third party for any sums paid to Lender hereunder.
9. Subordination. Guarantor hereby subordinates any and all
indebtedness of Borrower to Guarantor to the full and prompt payment and
performance of all of the Liabilities. Guarantor agrees that Lender shall be
entitled to receive payment of all Liabilities prior to Guarantor's receipt of
payment of any amount of any indebtedness of Borrower to Guarantor. Any payments
on such indebtedness to Guarantor, if Lender so requests, shall be collected,
enforced and received by Guarantor, in trust, as trustee for
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40
Lender and shall be paid over to Lender on account of the Liabilities, but
without reducing or affecting in any manner the liability of Guarantor under the
other provisions of this Guaranty. Lender is authorized and empowered, but not
obligated, in its discretion, (a) in the name of Guarantor, to collect and
enforce, and to submit claims in respect of, any indebtedness of Borrower to
Guarantor and to apply any amounts received thereon to the Liabilities, and (b)
to require Guarantor (i) to collect and enforce, and to submit claims in respect
of, any indebtedness of Borrower to Guarantor, and (ii) to pay any amounts
received on such indebtedness to Lender for application to the Liabilities.
10. Assignment of Lender's Rights. Lender may, from time to time,
without notice to Guarantor, assign or transfer any or all of the Liabilities or
any interest therein and, notwithstanding any such assignment or transfer of the
Liabilities or any subsequent assignment or transfer thereof, the Liabilities
shall be and remain the Liabilities for the purpose of this Continuing Guaranty.
Each and every immediate and successive assignee or transferee of any of the
Liabilities or of any interest therein shall, to the extent of such party's
interest in the Liabilities, be entitled to the benefits of this Continuing
Guaranty to the same extent as if such assignee or transferee were Lender;
provided, however, that unless Lender shall otherwise consent in writing, Lender
shall have an unimpaired right, prior and superior to that of any such assignee
or transferee, to enforce this Continuing Guaranty for its own benefit as to
those of the Liabilities which Lender has not assigned or transferred.
11. Indulgences Not Waivers. No delay in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
Lender of any right or remedy shall preclude other or further exercise thereof
or the exercise of any other right or remedy; nor shall any modification or
waiver of any of the provisions of this Continuing Guaranty be binding upon
Lender, except as expressly set forth in a writing duly signed and delivered by
Lender. No action of Lender permitted hereunder shall in any way affect or
impair the rights of Lender or the obligations of Guarantor under this
Continuing Guaranty.
12. Financial Condition of Borrower. Guarantor represents and warrants
that it is fully aware of the financial condition of Borrower, and Guarantor
delivers this Continuing Guaranty based solely upon its own independent
investigation of Borrower's financial condition and in no part upon any
representation or statement of Lender with respect thereto. Guarantor further
represents and warrants that it is in a position to and hereby does assume full
responsibility for obtaining such additional information concerning Borrower's
financial condition as Guarantor may deem material to its obligations hereunder,
and Guarantor is not relying upon, nor expecting Lender to furnish it any
information in Lender's possession concerning Borrower's financial condition or
concerning any circumstances bearing on the existence or creation, or the risk
of nonpayment or nonperformance of the Liabilities.
Guarantor hereby waives any duty on the part of Lender to disclose to
Guarantor any facts it may now or hereafter know about Borrower, regardless of
whether Lender has reason to believe that any such facts materially increase the
risk beyond that
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41
which Guarantor intends to assume or has reason to believe that such facts are
unknown to Guarantor.
Guarantor hereby knowingly accepts the full range of risk
encompassed within a contract of "Continuing Guaranty" which includes, without
limitation, the possibility that Borrower will contract for additional
indebtedness for which Guarantor may be liable hereunder after Borrower's
financial condition or ability to pay its lawful debts when they fall due has
deteriorated.
13. Representations and Warranties. Guarantor represents
and warrants to Lender that each of the following statements is accurate and
complete as of the date of this Continuing Guaranty:
a. this Continuing Guaranty has been duly executed
and delivered by Guarantor and constitutes a legal, valid and binding
obligation of Guarantor, enforceable against Guarantor in accordance
with its terms, except as limited by bankruptcy, insolvency or other
laws of general application relating to or affecting the enforcement of
creditors' rights generally;
b. the execution, delivery and performance of this
Continuing Guaranty do not (i) violate any provisions of law or any
order of any court or other agency of government (each, a "Requirement
of Law"), (ii) contravene any provision of any material contract or
agreement to which Guarantor is a party or by which Guarantor or
Guarantor's assets are bound (each, a "Contractual Obligation"), or
(iii) result in the creation or imposition of any lien, charge or
encumbrance of any nature upon any property, asset or revenue of
Guarantor except pursuant to or as set forth in the Security Documents;
c. all consents, approvals, orders and
authorizations of, and registrations, declarations and filings with, any
governmental agency or authority or other person or entity (including,
without limitation, the shareholders or partners of any entity), if any,
which are required to be obtained in connection with the execution and
delivery of this continuing Guaranty or the performance of Guarantor's
obligations hereunder have been obtained, and each is in full force and
effect;
d. Guarantor has paid all taxes and other charges
imposed by any governmental agency or authority due and payable by
Guarantor other than those which are being challenged in good faith by
appropriate proceedings except pursuant to or as set forth in the
Security Documents;
e. Guarantor is not in violation of any Requirement
of Law or Contractual Obligation other than any violation the
consequences of which could not have a material averse effect on
Guarantor's ability to perform its obligations hereunder (a "Material
Adverse Effect"); and
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42
f. no action, proceeding, investigation or
litigation is pending or overtly threatened against Guarantor by any
person or entity which, if adversely determined, could have a Material
Adverse Effect.
14. Guarantor Financial Information. Guarantor will
provide Lender in writing such financial and other information with respect to
his assets and liabilities as Lender shall reasonably request from time to
time, in form satisfactory to Lender.
15. Binding Upon Successors; Death of Guarantor. This
Continuing Guaranty shall be binding upon Guarantor and Guarantor's successors
and assigns and shall inure to the benefit of Lender and its successors and
assigns. This Continuing Guaranty shall not terminate or be revoked upon the
death of Guarantor, notwithstanding any knowledge by Lender of Guarantor's
death.
All references herein to Borrower shall be deemed to include
its successors and assigns, and all references herein to Guarantor shall be
deemed to include Guarantor and Guarantor's successors and assigns or, upon the
death of Guarantor, the duly appointed representative, executor or
administrator of Guarantor's estate.
In addition and notwithstanding anything to the contrary
contained in this Continuing Guaranty or in any other document, instrument or
agreement between or among any of Lender, Borrower, Guarantor or any third
party, the obligations of Guarantor with respect to the Liabilities shall be
joint and several with any other person or entity that now or hereafter executes
a guaranty of any of the Liabilities separate from this Continuing Guaranty.
16. Notices. All notices required or permitted to be given
hereunder shall be in writing and shall be either personally delivered, faxed
to the fax numbers provided herein or sent by United States certified or
registered mail, return receipt requested, addressed to Guarantor or Lender at
their respective addresses stated below or at such other address as either
party hereafter notifies the other party as herein provided. Notices shall be
deemed received on the earlier of (i) the date noted on the return receipt as
delivered if mail delivery of the notice is successful or the date inscribed on
a confirmation of successful transmission, if sent by facsimile; (ii) the last
date of attempted delivery, as noted by the United States Postal Service on the
envelope containing the notice, if mail delivery is unsuccessful; or (iii) the
date of the actual delivery if personally delivered.
17. Governing Law; Additional Waivers. This Continuing
Guaranty has been delivered and shall be governed by and construed in
accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of Arizona, provided that Guarantor agrees that each
of the waivers and agreements of Guarantor herein which refer to provisions of
the California Civil Code and the California Code of Civil Procedure shall be
effective and enforceable to the extent permitted under applicable law, and to
the extent that any court of competent jurisdiction shall apply the laws of the
State of California to determine the relative rights or remedies of Lender and
Guarantor hereunder, such waivers and agreements by Guarantor shall be governed
by the laws of the State of California.
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GUARANTOR HEREBY
(i) WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION TO ENFORCE
OR DEFEND ANY MATTER ARISING FROM OR RELATED TO THIS CONTINUING
GUARANTY, AND ACKNOWLEDGES THAT LENDER ALSO WAIVES SUCH RIGHT;
(ii) IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED IN MARICOPA COUNTY, ARIZONA, OVER ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY MATTER ARISING FROM OR RELATED TO
THIS CONTINUING GUARANTY;
(iii) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT GUARANTOR MAY
EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING;
(iv) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in any other
jurisdictions by suit on the judgment or in any other manner provided by
law; and
(v) agrees not to institute any legal action or proceeding
against Lender or any of Lender's directors, officers, employees, agents
or property concerning any matter arising out of or relating to this
Continuing Guaranty in any court other than one located in Maricopa
County, Arizona.
Nothing herein shall affect or impair Lender's right to serve
legal process in any manner permitted by law or Lender's right to bring any
action or proceeding against Guarantor or its property in the courts of any
other jurisdiction. Wherever possible each provision of this Continuing
Guaranty shall be interpreted as to be effective and valid under applicable
law, but if any provision of this Continuing Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Continuing Guaranty.
18. KNOWING AND EXPLICIT WAIVERS. GUARANTOR REPRESENTS AND
WARRANTS THAT GUARANTOR IS FULLY AWARE OF THE SPECIFIC PROVISIONS OF DIVISION
THREE, PART 4, TITLE 13 OF THE CALIFORNIA CIVIL CODE, INCLUDING SECTIONS 2787
THROUGH 2855, AND OF SECTIONS 580A, 580B AND 580D OF THE CALIFORNIA CODE OF
CIVIL PROCEDURE, AND THAT GUARANTOR'S WAIVERS HEREIN OF ALL RIGHTS, BENEFITS,
PROTECTIONS AND DEFENSES THAT MAY BE AVAILABLE THEREUNDER AND ALL OTHER WAIVERS
HEREIN ARE EXPLICIT, KNOWING WAIVERS.
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44
GUARANTOR ACKNOWLEDGES THAT GUARANTOR HAS EITHER OBTAINED THE ADVICE OF
COUNSEL OR HAS HAD THE OPPORTUNITY TO OBTAIN SUCH ADVICE IN CONNECTION WITH THE
TERMS AND PROVISIONS OF THIS CONTINUING GUARANTY. GUARANTOR FURTHER ACKNOWLEDGES
THAT BY EXECUTING THIS CONTINUING GUARANTY, GUARANTOR IS WAIVING CERTAIN RIGHTS
AS OTHERWISE SET FORTH HEREIN TO WHICH GUARANTOR MAY OTHERWISE BE ENTITLED BY
LAW.
THIS CONTINUING GUARANTY CONTAINS THE COMPLETE UNDERSTANDING OF THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREIN. GUARANTOR ACKNOWLEDGES
THAT GUARANTOR IS NOT RELYING UPON ANY STATEMENTS OR REPRESENTATIONS OF LENDER
NOT CONTAINED IN THIS CONTINUING GUARANTY AND THAT SUCH STATEMENTS OR
REPRESENTATIONS, IF ANY, ARE OF NO FORCE OR EFFECT AND ARE FULLY SUPERSEDED BY
THIS CONTINUING GUARANTY.
This Continuing Guaranty may only be modified by a writing executed by
Guarantor and Lender.
IN WITNESS WHEREOF, Guarantor has executed this Continuing Guaranty this
18th day of November, 1994.
"Guarantor"
/s/ XXXXXXX XXXXXXXXX
-------------------------------
Xxxxxxx Xxxxxxxxx
Guarantor's address
for notices:
0000 Xxxxxxxxxx Xx.
--------------------------------
Xxxxxx Xxx Xxx, XX 00000
--------------------------------
Lender's address for notices:
Greyhound Financial Corporation
000 X. Xxxxxxxx Xx., Xxx. 000
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
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45
AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Amendment to Loan and Security Agreement is made as of this 8th day of
November 1995 between FINOVA Capital Corporation, successor in interest to
Greyhound Financial Corporation ("FINOVA") and Procom Technology, Inc.
("Procom") in reference to the following stipulated facts:
A. FINOVA and Procom have previously entered into the certain Loan
and Security Agreement dated November 18, 1994 ("Loan Agreement"), regarding
FINOVA's financial accomodations to Procom.
B. Procom has requested certain modifications to the Loan
Agreement. FINOVA is willing to make certain modifications but only on the
terms and conditions set forth below.
Now therefore, the parties agree as follow:
1. Capitalized terms herein, unless otherwise defined herein, shall
have the meaning set forth in the Loan Agreement.
2. The Total Facility, as set forth on page S-1 of the Loan Agreement,
is hereby changed from $9,000,000 to $13,000,000.
3. Paragraph A.(a) on page S-1 on the Loan Agreement is hereby
modified by replacing "Four Million Dollars ($4,000,000)" with "Six Million
Dollars ($6,000,000)."
4. Paragraph B.(a) on page S-2 of the Loan Agreement is hereby
modified by replacing "Five Million Dollars ($5,000,000)" with "Seven Million
Dollars ($7,000,000)."
5. The paragraph titled "Interest" on page S-2 is hereby modified by
deleting the reference therein to "Four Million Dollars ($4,000,000)" in the two
places set forth in that paragraph and replacing it with "Six Million Dollars
($6,000,000)." The paragraph is further modified by adding the following:
"If, during any full calendar quarter during the term of this
Agreement, volume under the Floorplan Credit Line (as measured by the total of
the face amounts of invoices funded by FINOVA under the Floorplan Credit Line
during such period) is equal to or greater than the amount set forth below, the
interest rate of 1.5% in excess of the Base Rate shall be retroactively reduced
to a per annum rate (over a 360 day year) to the corresponding rate set forth
below.
QUARTERLY
FLOORPLAN VOLUME RATE OVER BASE RATE
---------------- -------------------
$7,000,000 1.0%
$8,500,000 0.5%
$10,500,000 0.0% (Interest charged at Prime)
46
6. In addition to all other fees and expenses, Borrower agrees to pay
on the date hereof an amendment fee of $20,000 plus all of FINOVA's
out-of-pocket legal expenses and costs not to exceed $1,000 incurred in
connection with the negotiation, documentation and closing of this Amendment.
The $20,000 Amendment fee shall be paid as follows: $10,000 shall be charged to
borrower's Revolving Credit Line on the date hereof. The remaining $10,000
will be charged on May 1, 1996.
7. Except as otherwise provided by the terms of this Amendment, the
Loan Agreement remains in full force and effect.
8. This Amendment may be executed in counterparts, each of which when
taken together shall be one and the same document.
9. This Amendment shall be governed by the laws of the State of
Arizona.
PROCOM TECHNOLOGY, INC.
By [SIG]
-----------------------------
Its [SIG]
----------------------------
FINOVA Capital Corporation
By
-----------------------------
Its
----------------------------
The undersigned guarantors hereby consent
and agree to the foregoing and confirm and
acknowledge that their respective Guaranties remain
in full force and effect in accordance with their terms.
/s/ XXXX XXXXX
-------------------------------------------
Xxxx Xxxxx
/s/ XXXXXXX XXXXXXX
-------------------------------------------
Xxxxxxx Xxxxxxx
/s/ XXXXXX XXXXXXXXXXX
-------------------------------------------
Xxxxxx Xxxxxxxxxxx
/s/ XXXXXXX XXXXXXXXX
-------------------------------------------
Xxxxxxx Xxxxxxxxx
47
[PROCOM TECHNOLOGY LETTERHEAD]
September 18, 1996
Xx. Xxxxxx August
FINOVA Capital
0000 Xxxxx Xxx. Xxx. 000
Xxxx xx Xxxxxxx, XX 00000
RE: Notification of Officer Compensation,
Year Ended July 26, 1996
Dear Xxxxxx:
Pursuant to your recent request, I provide for your review a report of the
amounts paid to the four executive officers of the Company for bonuses for the
year ended July 26, 1996.
Our Loan Agreement allows for the payment of bonuses of up to 50% of the
Company's pretax income, twice a year, after the issuance of financial
statements. I have enclosed for your review copies of the financial statements
for the year ended July 26, 1996. These financials reflect pretax income of
$5.056 million, but included are actual or accrued bonus payments of $2.890
million, for adjusted prebonus income of $7.946 million. One half that amount
would be $3.973 million, and the bonuses of $2.850 would be in compliance with
our agreement. The accrued bonuses will be paid within the next month or so.
I have also attached for your review a computation showing our compliance with
the various financial covenants at July 26, 1996.
Our auditors have asked me to have you confirm receipt of our August 11, 1996
letter asking for your understanding of the previous compensation
arrangements. Please acknowledge receipt by initialling below, and faxing a
copy to me at (000) 000-0000, and to Xxxxxx at Xxxxxx Xxxxxxxx at (714)
757-3163.
Thank you, and fee free to call me with any questions.
Sincerely,
/s/ XXXX XXXX
Xxxxxxxxx Xxxx
Vice President Finance
Xxxx- Finova has received and acknowledges this letter and the August 11, 1996
letter re: compensation. Any technical violations are waived by Finova
(without waiving the right of Finova to declare any similar or other violation
a default of the Loan Agreement).
FINOVA By /s/ XXXXXX X. AUGUST Title ACCOUNT EXECUTIVE
--------------------------- -------------------------
Date 9/20/96
-------------------------
48
[FINOVA LETTERHEAD]
October 29, 1996
Procom Technology, Inc.
Xx. Xxxx Xxxx
Vice President, Director of Finance
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Dear Xxxx:
Please accept this letter as FINOVA's consent to allow Procom Technology Inc.
("Procom") to alter its capital structure as prevented in the Negative Covenant
14.1 Mergers (page 12) of The Loan & Security Agreement. We understand this
change to include a 3:1 stock split and subsequent sale of 3 million shares of
stock in the $9-to-$11 per share range.
Everyone at FINOVA is proud of Procom's accomplishments and success. We view
this momentous event as a significant milestone for Procom and look forward to
sharing with you more such events. We wish you continued success.
Sincerely,
FINOVA Capital Corporation
/s/ XXXXXX X. AUGUST
Xxxxxx X. August
Account Executive
49
[FINOVA LETTERHEAD]
November 14, 1996
Procom Technology, Inc.
Xx. Xxxx Xxxx
Vice President
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Dear Xxxx:
This letter confirms that Procom Technology, Inc. ("Procom") may purchase up to
$13 million, reduced by any amount outstanding under the Revolving Line of
Credit, in inventory from FINOVA approved vendors.
FINOVA has reviewed the Certain Transactions and to the extent necessary waives
any violation that any transaction listed may have caused in the Loan &
Security agreement between Procom and FINOVA.
FINOVA acknowledges the officer bonuses of $2.89 million were earned by the
officers for the year ended 7/26/96 and that the amount and payment of these
bonuses is not a violation of any term of the loan agreement.
Thank you very much for giving FINOVA the opportunity to handle your account.
Sincerely,
FINOVA Capital Corporation
/s/ XXXXXX X. AUGUST
Xxxxxx X. August
Account Executive
